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Memo to New York State Senators: Commercial Surrogacy Undermines the Child-Parent Relationship

On November 9, 1980, Elizabeth Kane (a pseudonym) gave birth to a baby boy, in the first legal traditional surrogate contract pregnancy in the United States. Kane went on to write a book in which she laments her decision to be a surrogate mother.

Until the mid-1980s, surrogacy was uncommon, and there were few laws, if any, governing its practice. It wasn’t until the infamous Mary Beth Whitehead/ Baby M surrogacy case that states began studying surrogacy and passing laws to prohibit it or regulate it. In 1986, in the wake of that case, then-Governor Mario Cuomo called for the New York State Task Force on Life and Law to study surrogacy. The Task Force deliberated for a year before issuing its report and recommendations. The 1988 report analyzed surrogate parenting, “explored relevant family law principles, available data about infertility, the constitutional rights of the parties involved, and information about the practice in New York and nationally.” The New York State Department of Health website reports that

The Task Force unanimously recommended that public policy should prohibit commercial surrogate parenting. The members concluded that the practice could not be distinguished from the sale of children and that it placed children at significant risk of harm. They also agreed that surrogacy undermines the dignity of women, children, and human reproduction. The Task Force rejected the notion that rights as fundamental as the right of a parent to a relationship with his or her child should be bought and sold or waived irrevocably in advance of the child’s birth.

Legislation based on the Task Force’s proposal was enacted in 1992. The legislation embraces existing family law principles, rather than contract law, as the touchstone for public policy on surrogate parenting. As recommended by the Task Force, the law declares surrogacy contracts void in New York, and bans the payment of fees to women who serve as surrogates and to individuals who act as brokers for the arrangements. The law does not, however, bar surrogate arrangements that are voluntary and non-commercial; consistent with existing New York adoption law, a woman can voluntarily relinquish her child after birth. Under the legislation, the intended parents can reimburse the birth mother for reasonable medical expenses arising from pregnancy and childbirth but cannot pay her for relinquishing the child.

The Task Force’s recommendation led to legislation in New York that made commercial surrogacy contracts illegal in the state and those who violate the law subject to fines. Altruistic surrogacy is legal in New York, but the contracts are not enforceable. Currently, if an altruistic surrogacy arrangement happens in New York resulting in the birth of a child, the birth mother can only relinquish the child after its birth, and the intended parents must go through legal adoption proceedings to become the child’s legal parents.

As the old saying goes, “if it’s not broken, don’t fix it.” But that was then, and this is now.

Read more at The Public Discourse.

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