Quantcast

Gotham Gazette

The Place for New York Policy and politics

Citizens Union
 

Opinion

Opinion

The Right Way to Legalize Surrogacy in New York


up 2017 1014 054 294s23m

Sital Kalantry, the author (photo: Cornell Law School)


New York State is on the brink of replacing an outdated and prohibitive law that criminalizes the practice of compensated surrogacy, one of only two states that does so. Legislation to reverse the law has been introduced in both houses of the state Legislature, and Governor Cuomo has demonstrated support for it by including it in his Executive Budget.

As a law professor who focuses on gender equity, I’ve taken great interest in issues related to surrogacy in the United States and abroad. I’ve closely reviewed laws in multiple states as well as internationally, and I support New York’s legalization of surrogacy.

When a woman chooses to support a couple or individual by serving as a gestational surrogate (where she is not genetically connected to the child because she did not contribute her egg), I believe she must have the autonomy to do so – provided she is protected by the law to ensure that any power imbalance between her, on the one hand, and the intended parents, surrogacy agencies and doctors, on the other hand, is mitigated.

The proposal the New York Legislature is considering and that Governor Cuomo is advancing, the Child-Parent Security Act, does protect surrogates in many ways. While the bill clarifies the parentage of all children born through third-party reproduction, here I focus only on how it legalizes and regulates gestational surrogacy arrangements.

Protections provided by the bill include: giving the surrogate the sole right to make decisions regarding her own health or that of the fetus or embryo she is carrying; giving the surrogate the sole right to terminate the pregnancy; and ensuring that the surrogate is represented by her own legal counsel. These types of commonsense protections are critical to creating a successful and effective program. If the New York Legislature passed the Child-Parent Security Act, New York’s law would be more protective of women who choose to be surrogates than laws in many other states.

Reexamining current law is long past due as technological advances and changes in acceptance of various family structures have made surrogacy much more commonplace. When lawmakers first implemented a ban on surrogacy in New York in 1992, they did so for several reasons that are less relevant today.

For example, when the restrictive New York law was enacted, there were ethical concerns about what was then nascent medical treatment -- in vitro fertilization (IVF). Today, IVF is commonly-accepted as treatment for infertility and is also used in the gestational surrogacy process.

Despite the ban, today New Yorkers do work with surrogates to build families. They are just required to employ surrogates living in other states. This results in legal challenges, risks, and costs for the intended parents, including confusion regarding what laws are applicable to the situation.   

It’s past time for New York to modernize its laws so that intended parents in New York can work with surrogates in their own state, with laws supporting and protecting both, and for surrogates who want to help intended parents start their family to be able to do so. Just last year New Jersey legalized gestational surrogacy moving beyond the restrictive approach to surrogacy that was articulated in its famous Baby Mcase in 1988. I wholeheartedly encourage the New York Legislature and Governor to approve this important measure this year.

***
Sital Kalantry is a Clinical Professor of Law, Director of the International Human Rights Policy Advocacy Clinic, and Co-Director of the Migration and Human Rights Program at Cornell Law School. On Twitter @skalantry.

***
Have an op-ed idea or submission for Gotham Gazette? Email This email address is being protected from spambots. You need JavaScript enabled to view it.

Criminal Justice Reforms Will Not Make Enough Progress If We Don’t Also Change the Criminal Court


may b28 reed

(photo: Ed Reed/Mayoral Photography Office)


While momentum is building for the New York State Legislature to pass long-overdue bills directed at bail, discovery, and speedy trial reforms that promise to make the Criminal Court fairer, will these pieces of legislation do more than make a brutal, racist machine slightly less brutal?

New York’s insidious reliance on money bail is now widely condemned and proposals for reform abound. Some have suggested eliminating cash bail except for certain designated charges. In other words, pre-trial freedom should not depend on the size of your bank account, that is unless you are charged with certain crimes. Others want to eliminate cash bail but allow for preventive detention so that in certain situations a person could be remanded -- held without even the possibility of posting bail -- based on predictions of future dangerousness.

Usually in the legislative mix is a risk assessment tool that most people believe has racial bias baked into its core no matter how hard proponents try to disaggregate. And in place of release on one’s own recognizance -- simply being released and told to return to court on another day -- is a menu of supervised release, GPS monitoring, and other types of surveillance that expand the net of governmental control and intrusion over those hauled into Criminal Court for charges minor and serious alike.    

New York’s ironically named discovery laws have rightfully been compared to a blindfold. Stories are legion of people forced to engage in plea bargaining and the crucial decision of whether to run the risk of a trial without knowing the evidence against them. Proposed reforms all dictate that the accused must have access to discovery much earlier in the process.

However, the crisis of discovery is not limited to when documents are provided to the defense. It is also a matter of what documents are provided. Some jurisdictions allow for the defense to depose the prosecution’s witnesses. In New York, the accused gets reports filled out by police officers that merely summarize what witnesses had to say. Some jurisdictions require that the complaint that informs the accused of the nature of the charges must specify the facts that support the legality of the stop and arrest, as well as facts that detail evidence of guilt.

In New York, the complaint is a template usually devoid of any details. One critical piece of discovery is the initial interview between prosecutor and arresting officer that takes place within hours of the arrest. In New York, the defense is entitled to the prosecutor’s de minimis notes from that interview. That interview should be taped, with the officer under oath, and provided to the defense at the accused’s initial appearance before a judge.  

Yet even if the new laws addressed all the concerns raised above, what needs to change is the Criminal Court itself, a heretofore intractable behemoth that grinds up everything and everyone in its path. Much as prison abolition has moved from the impossible to the imaginable, so, too, should talk of abolishing the present incarnation of the Criminal Court.

The New York City Criminal Court has proven impervious to change. During the 1980s crack-cocaine epidemic, tens of thousands of drug-related arrests flooded the court. The court absorbed them all without as much as a hiccup. More recently, with Broken Windows, or quality-of-life, policing, the courts have been inundated with hundreds of thousands of misdemeanor cases. Again, the court took them all in without missing a beat.  

No matter what the input, or whatever legislative reforms are enacted, the Criminal Court continues to do exactly what it is designed to do -- push cases, get pleas, and move the calendar with scant concern about the constitutionality of the arrest or the sufficiency of the evidence of guilt.  

While no one can or should gainsay the importance of the proposed reforms to bail, discovery, and speedy trial, it is the Criminal Court itself that needs reform.

The court’s method, or lack thereof, of adjudicating cases has not changed since its current incarnation in 1962. It has long been appropriately referred to as an assembly line marked by a lack of adversarial litigation, as people are processed in ways that more resemble the Department of Motor Vehicles than anyone’s conception of a court.  

All the discovery in the world may not stop judges from threatening the accused with a maximum sentence if they have the temerity to insist on their right to a trial, or prosecutors from making “one time only” plea offers, or revoking offers if the accused seeks to challenge the lawfulness of their arrest.

It is about time for the Criminal Court to be evaluated on how well it enforces constitutional rights.

The stop-and-frisk federal class action in Floyd v. City of New York exposed rampant search and seizure violations. How has the Criminal Court addressed that reality? The court in Floyd also found an equal protection violation as stop-and-frisk was disproportionately inflicted on people of color. Spend just a few hours in any of the city’s criminal courts and you will see the unabashed manifestation of similarly race-based policing as 95% of defendants are people of color. What is the Criminal Court response to that reality?

There is as well the accused’s right to due process, to basic, fundamental fairness. Due process is hardly the phrase that comes to mind when you spend any time in the Criminal Court.

To be clear, bail, discovery, and speedy trial laws must be reformed. Fewer people will be held in pretrial detention, fewer people will remain in the dark about the nature of the evidence they face, and fewer people will have an interminable wait for a trial. What remains to be seen is whether these changes will transform the Criminal Court from a guardian of assembly-line justice to an enforcer of constitutional rights.

***
Steven Zeidman is a professor of law at CUNY School of Law. On Twitter @SteveZeidman.

***
Have an op-ed idea or submission for Gotham Gazette? Email This email address is being protected from spambots. You need JavaScript enabled to view it.

A Fairer New York City Requires Salary Parity for the Early Childhood Workforce


may bdb com

(photo: Rob Bennett/Mayor's Office)


At his State of the City address, Mayor de Blasio pointed to the expansion of universal prekindergarten for New York City four-year-olds and the expansion of 3-K as an integral part of his administration’s commitment to making New York City “the fairest big city in the country.”

While listening to the mayor’s speech – and the attention he paid to the success of universal pre-K and the new 3-K expansion – child advocates and educators in the audience found ourselves wanting to shout out ‘Salary parity now!’

To date, the cornerstone of the city’s ambitious early education efforts has been these extensions of public schooling to four- and three-year-olds. Enrollment in universal pre-K for four-year-olds is up over 350 percent since the mayor took office and 94 percent of universal pre-K classrooms are meeting nationally recognized standards for positive classroom conditions and child outcomes. The mayor pointed out in his address, “Pre-K and 3-K classrooms are jumpstarting children’s education and putting thousands of dollars in parents' pockets at the same time.”

For the children and families who benefit from these programs, there is no doubt that such progress is meaningful.

Yet, the ability to fully celebrate this important milestone is tarnished by the mayor’s failure to achieve salary fairness for early educators.

Those of us who have been championing the mayor’s early education proposals for years, even prior to his days in the City Council, and who have forcefully advocated to help secure the state resources necessary to make universal pre-K a reality feel betrayed.

We are forced to ask again and again, why hasn’t the de Blasio administration secured salary parity for the early childhood workforce?  

In 2014 the de Blasio administration launched universal prekindergarten and engaged over 1,000 community-based organizations (CBOs) with a history of providing high-quality child care and preschool services to the city’s poorest children, with the opportunity to offer pre-K. These organizations operate separately from K-12, public Department of Education (DOE) schools. Their workers are represented by different unions and some workers have no representation. Because these CBOs provide more than half of all UPK classrooms citywide, they have had and continue to play a critical role in the de Blasio administration’s most well-regarded achievement — one through which he seeks to acquire a national reputation.

Importantly, the CBOs are not only responsible for the majority of universal pre-K classrooms in New York City, they also offer working parents programming for longer hours than their counterparts at DOE schools. The teachers and staff in CBOs often work into evenings and through summer months when most DOE classrooms are shuttered or teachers are on vacation. Yet, despite longer days and year-round work, CBO early educators earn far less than their DOE peers.

CBO early educators that hold a bachelor’s degree earn a starting salary of just over $42,000 and those with a master’s degree earn a starting salary of nearly $48,000; compared to starting salaries of nearly $58,000 and just over $65,000 for prekindergarten teachers with bachelor’s or master’s degrees, respectively, at DOE schools based on an updated salary progression that goes into effect this month.

Salary disparities widen over time as CBO early educators typically see their salaries rise by approximately $2,800 over the course of eight years; whereas DOE early educators see their annual pay rise by $20,000 during the same period.  

In the mayor’s recently-released 2020 preliminary budget, funding for various education initiatives would see increases – including a $25 million increase from last year to expand universal 3-K to two new districts for next school year. The preliminary budget also makes a $316 million investment in new collective bargaining costs related to United Federation of Teachers (UFT) teacher salaries in 2020, an investment that grows to $829 million annually in the out-years of the budget plan.

There is no investment in the mayor’s budget in pay parity for the workforce in community-based organizations.

Because compensation levels are so unequal, turnover rates are high in CBO pre-K and 3-K. The Day Care Council of New York reports that half of CBOs lost teachers to the DOE in the first year of universal pre-K alone. As turnover issues persist, many pre-K students in CBOs find their learning environments destabilized at some point during the year.

So, one should ask: how can we in good conscience celebrate the success of universal pre-K and new 3-K expansion efforts while early educators in CBOs earn $15,000 to $35,000 less than their DOE peers?

We also know that women of color are the primary victims of this profound inequity in compensation. There is no mistake that the achievement of salary parity, for them, would be life-altering. Just think what an increase of $15,000 to $35,000 in salary would mean to their pocketbooks and their own capacity to address their household needs.

Furthermore, parity would bring program stability to CBOs and the early education system overall, benefitting children and parents who rely on these programs.

Finally, in July of this year, DOE will acquire responsibility for all contracted early education programs, family day care, and child care centers, currently overseen by the Administration for Children’s Services. In preparation for that transition, the DOE is about to rebid the entire early education system this winter with the goal of having new contracts in place for infant and toddler care, Head Start, and universal prekindergarten and 3-K by 2020. Indeed, the transition has been touted by the DOE as an opportunity to build a seamless early education system for New York City’s children from birth to five years of age.

Mayor de Blasio is seeking to solidify his place as a progressive rising star of national importance by pointing to New York City’s continued progress on early education as illustrative of how to make big cities fairer. It is critical that he brings true fairness to the city’s early education workforce and makes salary parity a reality. There is no greater opportunity to ensure that the city’s children are prepared for school success than by equitably compensating the workforce that supports and nurtures their growth.

***
Jennifer March, PhD., is the executive director of Citizens’ Committee for Children of New York. On Twitter @JenMarchCCC and @CCCNewYork.

***
Have an op-ed idea or submission for Gotham Gazette? Email This email address is being protected from spambots. You need JavaScript enabled to view it.



Print Friendly and PDF

Editor's Choice


Gotham Gazette: 2021 Comptroller Race Now Features Two City Council Members2021 Comptroller Race Now Features Two City Council Members Gotham Gazette: 10 Burning Questions After Cuomo's State of the State and Budget 10 Burning Questions After Cuomo's State of the State and Budget Gotham Gazette: City's 311 Upgrade Set for Mid-Year Launch City's 311 Upgrade Set for Mid-Year Launch Gotham Gazette: The Max & Murphy Podcast The Max & Murphy Podcast