Gotham Gazette

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Let's Legalize Surrogacy In New York The Right Way

state senator krueger during alb

State Senator Liz Krueger, the author (photo: NY Senate)

Advances in assisted reproductive technology (ART), including intrauterine insemination (IUI), in vitro fertilization (IVF), egg and sperm donation, and surrogacy, have created remarkable new family-building options in the last several decades. As someone who is unable to have my own biological children, I support New Yorkers being able to use ART, including surrogacy, to build the families they want.

Yet these relatively new technologies bring with them complex issues that must be considered carefully. After many discussions with my colleagues who support existing proposals to legalize and regulate paid surrogacy in New York, as well as experts and advocates, I believe those proposals do not do enough to balance and protect the health, safety, interests, and rights of all parties involved.

At the same time, in spite of the fact that paid gestational and genetic surrogacy are currently illegal, the ART, gamete donation, and surrogacy industries are already operating in New York, with insufficient regulation and protections. That is why I have introduced an alternative bill, along with Assemblymembers Didi Barrett and Danny O’Donnell, to tighten regulations on gamete donation and to legalize surrogacy with appropriate safeguards.

Our bill goes further than existing proposals in creating consumer protections, ensuring that participants are fully informed of health risks and other relevant factors, preventing exploitation, power imbalances, and inequitable treatment, requiring the use of best medical practices to protect the health and wellbeing of all parties, and information-gathering to facilitate much-needed research and tracking.

Intended parents, people acting as surrogates, egg and sperm donors, and of course any children that are conceived by assisted reproduction or born through surrogacy, are all intimately invested in the process and outcomes of any gamete donation or surrogacy agreement. For intended parents who decide to use surrogacy, they spend a significant amount of money, take time to carefully choose a person who will bear their child, and place their hopes in the person acting as surrogate.

Surrogates take on significant risks to their health, and in some cases their lives. They place their trust in the intended parents to adhere to the surrogacy agreement, and to provide a good home for the children they have spent nine months growing and nurturing inside their own body.

Children born through surrogacy or using ART have a right to have their needs and interests considered throughout the process, and to access data and research that are sorely lacking today on the health impacts of using certain forms of ART.

Our bill strengthens the existing proposals through several new or tightened provisions, including:

Evaluating intended parents and people acting as surrogates to assess eligibility.

Minimizing health risks for surrogate by establishing age restrictions, requirements relating to prior pregnancies and births, and preclusions on preexisting medical and psychological conditions that would make the pregnancy high-risk.

In order to prevent human trafficking, requiring intended parents and surrogates to be U.S. citizens or permanent lawful residents, and New York State residents for at least 12 months prior to executing an agreement.

Explicitly requiring more comprehensive, longer-lasting health, life, and disability insurance be provided to the surrogate.

Recognizing and protecting the human agency of the surrogate by allowing them to terminate the agreement at any time during the pregnancy. If this happens, the surrogate must return any financial compensation already received other than payment for medical, legal, and pregnancy-related expenses.

Creating a window after the birth of a child during which, in rare and extreme circumstances, the person acting as surrogate could ask a court to step in and determine legal parentage.

I believe that these measures, and several others addressing not only surrogacy but an array of assisted reproduction technologies, are necessary to balance the needs and interests of all the people engaged in gamete donation or surrogacy agreements. I hope that my colleagues in the Legislature, and Governor Cuomo, will take the time – after the new state budget is passed – to thoroughly consider and discuss all of the options on the table. Fundamental issues of equity, family, health, and people’s lives are at stake.

State Senator Liz Krueger is a Democrat representing parts of Manhattan. On Twitter @LizKrueger.

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