Surrogacy in New York
There are many ways to make a family. The intimate bonds of commitment and affection that make a family unit are grounded in a wide variety of ways: in biological relation, in choice, in shared experience, etc. Family bonds across generations are manifested between parent and child, but even these bonds vary in how they are grounded. Societies and our medical technology has developed in ways to support the variety of ways that parents can have children – currently there are ways to have a child through adoption, in vitro fertilization, and surrogacy, and advancements are being made in artificial wombs that would open up further methods of bringing children into the world. The diversity of methods for having children benefit potential parents for whom cis-hetero fertilization is not possible or desirable. Single parents, LGBT couples, and cis-hetero couples with fertility concerns are all aided by this variety of methods.
So, the medical technologies and social policies that support individuals’ decisions to become parents, and thereby positively respect autonomy of these people. However, as with many developments and advancements that can be costly, there are justice considerations that arise: who is benefitting from the development, and who is placed at risk? Gestational surrogacy has recently been debated along these lines, for while the opportunity to have a child via surrogate benefits many potential parents, the risk and burden of gestation is adopted by someone else. To be a surrogate, a person agrees to take on the responsibilities of pregnancy and gestation for a potential parent with the understanding that parental rights and responsibilities after the birth of the child will belong to the person seeking the surrogate, not the person who gestates the child. The morality of compensating someone to take on this burden with their time and body raises questions for feminists and economic ethicists alike.
Recently, New York State failed to pass a bill that would make compensated gestational surrogacy legal. Currently, in New York, only altruistic surrogacy is legal and surrogacy contracts are unenforceable. Surrogates cannot receive a fee or compensation, and the success of the arrangement is due solely to the integrity of the parties involved.
New York is one of two states that currently ban compensated gestational surrogacy outright. In 1992, a gestational surrogate in New Jersey sued to keep parental rights over her biological child. In the wake of that suit, New Jersey, Michigan and New York passed bills banning gestational surrogacy. New Jersey reversed the ban last year, leaving New York and Michigan remaining. (Though it is important to note the variety of restrictions and protections that exist across America, sometimes at the county-by-county level.)
However, the proposed bill — allowing gestational surrogates to be compensated for bearing a child without intending to bear the rights and responsibilities of parenthood — did not succeed during this legislative session. Democratic representatives were concerned that compensated surrogacy presents a slippery slope to commodifying women’s bodies and the bill did not garner sufficient support. “We must ensure that the health and welfare of women who enter into these arrangements are protected, and that reproductive surrogacy does not become commercialized,” said Assembly Speaker Carl Heastie.
Some feminists, such as Gloria Steinem, have been vocal opponents of gestational surrogacy. These opponents are concerned about the exploitation of people from marginalized and vulnerable groups and putting the bodies of individuals from such group to use for gestation. The monetary incentive to put one’s body through pregnancy presses on the economically vulnerable in an unjust way, they claim, and their case is strengthened by the state of surrogacy in Cambodia, Thailand, and India. In India, for example, some surrogates are forced to live in special homes and have no health insurance beyond the pregnancy, and no guarantee of payment.
Other feminists, as well as infertility advocates and LGBT groups, have been advocating in favor of changing the New York law. Governor Cuomo criticized the failure of support behind the bill, emphasizing the protections for the surrogates included that were meant to safeguard against exploitation. With all of these safeguards, Cuomo questioned how much the lawmakers were respecting the autonomy of those that would choose to be surrogates: “I say, how about a woman’s right to choose, which we just argued for Roe v. Wade?” Cuomo said. “But in this state we say the woman must have an attorney, the woman must have a health counselor, the transaction will be supervised under the Department of Health, the woman can’t be in dire economic conditions, but you still believe the woman is not competent to make that decision.”
Thus the division between protecting vulnerable groups (economically disadvantaged and individuals with uteruses) and advocating for individuals to be able to take on risks consensually came down in favor of protection in New York this month. Both sides emphasized that this will be an ongoing conversation.