End New York’s Ban on Surrogacy
June 17, 2019
Risa A Levine, Board Member, RESOLVE: The National Infertility Association
Alexis Cirel, Esq., Schwartz Sladkus Reich Greenberg Atlas, LLC
New York is one of two states in the country that criminalizes compensating a surrogate for gestational surrogacy – when a woman carries a pregnancy for people who need help having a baby. For an infertile couple, who has gone through years of invasive, expensive, painful, and emotionally debilitating treatment — and probably a number of miscarriages — finding out that they need the assistance of a surrogate to have a baby is hard enough. To then learn that they cannot do so in their home state, with their own doctors, is a catastrophe. The process is unduly onerous, adds unnecessary expense, inserts additional legal hurdles, and sadly, means that parents miss out on the opportunity of sharing the pregnancy with their surrogate, and sometimes even missing the birth.
Some have expressed concerns that compensated surrogacy could lead to the exploitation of poor or otherwise vulnerable women. This is an admirable concern – but it’s completely misguided. Across the country, a mantra has arisen, applicable in a myriad of circumstances: “Trust Women.” We say that women need to be believed when they tell their stories, and we say that women need to have autonomy over their own bodies to make their own health and medical decisions, including the decision not to carry a pregnancy. Why, then, would we presume that women are incapable of making an informed decision to carry a pregnancy and to experience the joy of giving the gift of life to another family? We know that surrogates are among the most informed about their rights, their bodies, and their needs, and we must trust them.
As to those who remain skeptical, the proposed legislation to reverse the ban on compensated gestational surrogacy, The Child Parent Security Act, offers security. It contains the strongest protections in the country for women who choose to be surrogates. In these last days before the legislative session closes, many extremists who are speaking out against the bill are creating a manufactured frenzy that at once ignores the safeguards that the bill extends at every step of the surrogacy journey and demeans these women, by suggesting that they are incapable of informed consent.
The language of the proposed law has been through years of iterations and refinements – the most recent of which include a Surrogate’s Bill of Rights, to further propel its status as the gold standard of surrogacy legislation in our country. The CPSA anticipates and addresses the complex medical and psychological issues that confront surrogates, and would codify medical, mental health, economic, and legal protections for the benefit of the surrogate in a manner that embodies “best practices” or standards of medical and legal care, including guidelines promulgated by the American Society for Reproductive Medicine and the Society for Assisted Reproductive Technology.
The legislation requires surrogates to be at least 21 years of age to complete evaluation to confirm that a pregnancy would not pose unreasonable health risks. The bill addresses concerns of unequal bargaining power and ensures that a surrogate not only understands the terms of the agreement she is entering into, but has the ability to negotiate terms by requiring that she have her own, independent legal counsel whose loyalty to her is undivided, but paid for by the intended parents. The intended parents must also pay for: health insurance for the surrogate throughout her pregnancy and for 26 weeks after birth of the child; all co-pays, deductibles and out-of-pocket medical costs associated with the pregnancy through 12 weeks after birth or termination of the pregnancy (which may be extended if necessary); a life insurance policy for the surrogate with a beneficiary of her choosing; and counseling for the surrogate. Under the proposed law, the surrogate’s compensation must be placed with a third-party escrow agent prior to any medical procedures so that any sums which are compensable to her are held safely for her benefit.
While the bill protects surrogates’ economic, legal and medical welfare, it also safeguards her constitutional freedom and autonomy over her body. The legislation would require surrogacy agreements to permit the surrogate to make all health and welfare decisions regarding herself and the pregnancy, including her right to choose her own health care practitioner and to terminate the pregnancy, and prohibits any remedy that requires her to be impregnated or to terminate or continue pregnancy, or to reduce or retain the number of fetuses she is carrying.
Finally, some of the most recent amendments to the CPSA call for regulatory oversight for even more security. Among them, a provision requiring the New York Department of Health to promulgate regulations that keep potential surrogates informed of risks and provide a mechanism for tracking surrogate health, and a licensing of surrogacy matching programs by New York State.
By denying access to treatment to New York's most vulnerable class of patients, those who have already endured so much, we are effectively limiting use of the available technologies to those who can afford the extra cost – thereby discriminating against both NY women who want to serve as surrogates, and families who cannot afford the additional expense and burden of traveling out of state.
We implore the New York State Assembly to join their colleagues in the Senate and pass The Child Parent Security Act this week.