by Jennifer Lahl, as published in First Things on May 22, 2020
The New York State Legislature has legalized commercial gestational surrogacy—the contractual renting of wombs and the buying and selling of newborn babies.
This was done at the insistence of Gov. Andrew Cuomo, who did not let the crisis of coronavirus go to waste. He refused to debate the bill as a stand-alone piece of legislation. Instead, he buried his surrogacy proposal in the state budget, which passed in the wee hours of the morning on April 3.
It is illegal under state law to sell organs, but women can now rent their wombs for profit, assuming they survive the surrogacy process. Gestational surrogacy involves impregnating a surrogate mother by implanting embryos created from the eggs of the intended mother or egg donor, and the sperm of the intended father or sperm donor. Women and newborns often do not survive gestational pregnancies, and those who do are often affected physically and psychologically.
For instance, surrogacy survivors Brittney Rose Torres and Melissa Cook each carried triplets. During their pregnancies, they were told to abort two of the three children, and faced threats and financial ruin for refusing to do so. Abortion and selective reduction clauses are routinely written into all surrogacy contracts as a matter of control over the end product, the child. Many embryos die in the surrogacy process. And it is well-documented in medical literature that a woman pregnant with “donor” eggs is at a very high risk of pregnancy-related complications such as preeclampsia and even death. Michelle Reaves and Crystal Wilhite died while giving birth as surrogates, leaving their own children without a mother.
Yet New York is now open for the business of buying and selling babies. Surrogacy brokers, lawyers, and fertility doctors will profit handsomely, while surrogate mothers and female egg donors will bear all the risks.
Altruistic surrogacy has always been legal in New York. But Cuomo’s commercialization of the procedure reverses a signature decision of his father, Gov. Mario Cuomo, who outlawed surrogacy contracts in 1992. In the wake of the “Baby M” surrogacy battle in New Jersey in the 1980s, Mario Cuomo convened a task force, which unanimously concluded that contractual surrogacy could not be distinguished from the sale of children and that it placed them at significant risk. It also agreed that surrogacy undermines the dignity of women, children, and human reproduction. The task force rejected the notion that the right of a parent to a relationship with the child in her own womb should be bought and sold or waived irrevocably in advance of the child’s birth.
But opinions changed—especially since same-sex marriage was legalized in New York in 2011. Some of the fiercest lobbyists for commercial surrogacy in New York have been gay activists. Andrew Cuomo had the help of Andy Cohen, of Bravo TV’s What Happens Live. Cohen is a gay man who has a child born via surrogacy. The bill’s author was Sen. Brad Hoylman (D-Greenwich Village), another gay man with children born via surrogacy. The formidable political influence of the gay community—which portrays commercial surrogacy as an extension of gay rights—has changed how surrogacy is viewed.
In 2017, the task force issued a new report, which stated:
The passage of the 2011 Marriage Equality Act in New York State and the decision of the Supreme Court in Obergefell v. Hodges in 2015 requires the reexamination of the state’s policies regarding surrogacy. Equity must be a driving principle if all families are to enjoy the opportunity to welcome children into their family. Gestational surrogacy affords lesbian, gay, bisexual, and transgender (LGBT) families an important opportunity to have children. LGBT families should have options similar to those of other families facing infertility, and equal access to adoption and ART.
Meanwhile, those on the task force who opposed legalizing commercial surrogacy were chided for “divisive rhetoric regarding non-traditional families, the LGBT community and reproductive rights of women by presenting beliefs and opinions as facts.” On February 11 of this year, Cuomo launched his “Love Makes a Family” campaign. He declared, “it is shameful that we are only one of three states that does not allow LGBTQ individuals and people struggling with fertility to use gestational surrogacy to start families.”
Surrogacy advocates claim the law protects women through a “Surrogates’ Bill of Rights.” Yet Cuomo refused to add protections to the surrogacy bill, such as provisions sought by Sen. Liz Krueger (D-Manhattan). While Krueger’s alternative bill remained flawed, it at least recognized the myriad conflicts of interest involved in commercial surrogacy, and the exploitation and health risks to women and children. For example, the Krueger bill required background checks and home visits.
Cuomo’s law states that the “intended parent or parents” (who do not have to be married) are not subject to any financial or criminal background checks. Moreover, only one of the parents is required to be a U.S. citizen or “lawful permanent resident,” which is an invitation for the wealthy from other countries to come to New York to purchase offspring—a practice already pervasive in California. This new law effectively encourages reproductive trafficking and reproductive tourism.
Surrogacy advocates claimed this bill was an extension of the state’s marriage equality law. But the legalization of gay marriage is no reason to open this dangerous can of worms. There is no right to harm others in order to have a child. But for gay couples—who will pay handsomely for kids—the demand for biological offspring has became more politically important than the health and exploitation risk surrogacy poses to women and children.
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