Gotham Gazette Mon, 19 Apr 2021 18:23:09 +0000 Joomla! - Open Source Content Management en-gb (Webmaster) Legalization of Paid Surrogacy Will Benefit Many in New York gov leg ges

The push to legalize surrogacy in New York was successful this year (photo: governor's office)

The New York Legislature passed its own economic stimulus package when it legalized paid gestational surrogacy in the new state budget. Beginning February 2021, legal professionals will have a new income source by helping couples participate in paid gestational surrogacy. In addition, New Yorkers who qualify as surrogates will be able to receive compensation for carrying a child; in California, qualified surrogates with a successful history of taking a child to term can earn $80,000. 

New York went from criminalizing paid gestational surrogacy to enacting the most progressive and comprehensive surrogacy law in the United States. New York is now the only state in the country to have a Surrogate’s Bill of Rights. These are statutory benefits to surrogates that must be provided by the intended parents. For instance, the intended parents are responsible for the cost of the surrogate having her own attorney. The intended parents will be financially responsible for the surrogate’s health insurance premiums during the pregnancy. The surrogate’s health insurance must extend 12 weeks after birth; if there were complications during the pregnancy, the extension of health insurance may be up to 18 weeks. The surrogate would also receive a life insurance policy during the pregnancy paid for by the intended parents and the beneficiary is designated by the surrogate.  

By criminalizing paid gestational surrogacy previously, New York made the choice for all women in the state that they could not participate in this type of surrogacy. However, the legalization of paid gestational surrogacy returned to women in New York the right to make choices regarding their own bodies. As part of the Surrogate’s Bill of Rights, the surrogate maintains control of her own health and body: the surrogate can limit the number of embryos transferred into her body; the surrogate selects her own doctor; and, the surrogate is not required to agree to a cesarean section. Most importantly, the surrogate can terminate the pregnancy at any time and for any reason.    

The financial implications for women who qualify as a surrogate are monumental. In speaking to a legislative aide to an Assembly member, the aide did not believe that legalizing paid gestational surrogacy would be of interest to his boss’ constituents. In the aide’s mind, such a law was really targeted to help couples who could not procreate on their own but who had the financial means to proceed with paid gestational surrogacy. However, paid gestational surrogacy in New York now permits a surrogate to be paid legally for her services. Thus, a healthy woman with limited financial means who meets the health requirements set forth in the statute now has the ability to change her and her family’s financial circumstances. Paid gestational surrogacy can help a woman help herself and her family out of a bad financial predicament and into a better one. This law is a game-changer for many women in New York.  

The legalization of paid gestational surrogacy has provided couples with critical rights as well. Most importantly, upon the birth of the child, the intended parents are immediately recognized as the child’s legal parents. This is critical to same-sex couples utilizing paid gestational surrogacy. The new law further provides that a judgment of parentage may even be issued prior to birth of the child (but only become operative upon the child’s birth). The intended parents become immediately financially responsible for the child. Importantly, the surrogate would have no legal rights to the child. Defining the parties’ roles following the birth of the child is important – especially if emergency medical decisions need to be made regarding the child.   

Those who opposed legalization of paid gestational surrogacy claimed surrogates became “Handmaids,” surrogacy enslaved women, and that surrogacy dehumanized women. However, women have not suffered such fates in the 47 other states where paid gestational surrogacy has been legal. Women in New York will now be fortunate to provide a child to parents who cannot bear their own. It is hard to argue with a law that brings the gift of life.

Eric Wrubel, Esq., is Chair of the Matrimonial Department of Warshaw Burstein, LLP.

Have an op-ed idea or submission for Gotham Gazette? Email

Legalization of Paid Surrogacy Will Benefit Many in New York Thu, 09 Apr 2020 04:00:00 +0000
A Cruel Surrogacy Proposal That New York Must Reject gov cuomo rally

There are competing proposals to legalize surrogacy in NY (photo: Governor's Office)

Imagine having a baby but then being told you have to wait eight days before securing custody of your child. It’s bizarre and cruel, yet it’s an idea that’s actually being floated in Albany right now as a “compromise” to finally end New York State’s outdated ban on gestational surrogacy.

As a three-time cancer survivor in my thirties who went through three rounds of fertility preservation before treatment, this is heartbreaking. I choose to live in New York for many reasons, one of them is the progressiveness of our laws. We are leaders, but not on surrogacy. Now, it’s essential we catch up, and there’s nothing progressive about a bill separating newborn babies from their biological parents just days after birth.

During my cancer recovery, I was shocked to learn New York is one of only three states banning surrogacy. This is an issue that hits home for me and the women I work with who have also survived cancer. For many cancer patients, infertility is an enormously emotional and physical side effect of life saving treatment. This can mean a significant decrease in number and quality of eggs, as well as the inability to carry a child to term. In many cases, the only possibility for having a biological child is through a partnership with a woman acting as surrogate.

Last year, Governor Cuomo, signed FAFTA (the Fair Access to Fertility Treatment Act) into law.  Part of this mandate (that went into effect January 1, 2020) requires private insurance companies to provide fertility preservation medical treatments for people facing iatrogenic infertility, that is, infertility caused by a medical intervention, such as radiation, medication, or surgery. The next obvious step is to figure out a solution that helps these women become mothers after their cancer chapter has closed.

Currently, New Yorkers in this situation are forced to go out of state to find a surrogate. A bill that would end that ban, the Child-Parent Security Act, has the strong support of Governor Cuomo and passed the state Senate last year before dying in the Assembly. It is under serious consideration again this year, with the governor prioritizing it in his budget proposal.

Now a new bill is being sold as a “compromise” that while technically legalizing surrogacy would also effectively eliminate its practice in New York. This means an exacerbating ‘well we tried’ response from people who don’t take New Yorkers’ needs seriously.

The so-called compromise bill (S7717), sponsored by Senator Liz Krueger and by Assemblymembers Didi Barrett and Danny O’Donnell, would establish that after a child is born via surrogacy, the surrogate (who has no genetic relationship to the child) and the intended parents (who in most cases do have a genetic relationship to the child) would share parenting responsibilities for up to eight days. The surrogate could take the child home if she chose to. And if she petitioned the court within those eight days, she would automatically become the legal parent of the child with no recourse for the intended parents. In order for the intended parents to become legal parents, they would need to submit to medical evaluations, home studies, and background checks. Last I checked, these are not requirements for those with the ability to become mothers the traditional way. 

Think about how cruel this proposal is for women struggling with infertility, including cancer patients. Imagine having to undergo treatment, doing everything possible to preserve fertility options, recovering from cancer, creating an embryo through IVF, and ultimately partnering with a woman who will carry your child to birth as a surrogate. And then still having to worry every day of the pregnancy that at the end of the process, the woman who is serving as a surrogate will change her mind and keep your child. It’s frightening, cruel, and just outright wrong. 

It also reflects a lack of understanding about what surrogates want. Under professional practices in the United States, every surrogate already has their own biological children and have undergone careful medical and psychological screening. These women know exactly what they’re engaging in – they’re not pursuing surrogacy to have another child, but to help a family that cannot have children on their own.

Conversely, the Child-Parent Security Act would go far in helping those struggling with infertility in New York build a family. This is where New York can establish itself as a leader once again, now as it relates to surrogacy. In addition to legalizing compensated gestational surrogacy agreements, the legislation would create peace of mind for intended parents and establish the strongest protections in the nation for women serving as surrogates. Critically, the legislation would create a Surrogates’ Bill of Rights in New York, ensuring that women serving as surrogates have the right to make all medical decisions regarding their health and the pregnancy, the right to independent legal counsel, the right to comprehensive health insurance, and the right to access counseling.

Given the additional pain and trauma Senator Krueger’s proposal would put cancer patients seeking to become parents through surrogacy through, I hope she will consider withdrawing it and choosing instead to support the Child-Parent Security Act. New York must legalize surrogacy agreements and I applaud Senator Krueger for recognizing that need. But it is critical that we do so in a way that does not create additional trauma on intended parents – who have already gone through so much – and that protects women who serve as surrogates in New York.

Amanda Rice is the founder and CEO of the Chick Mission, a non-profit focused on critical issues unique to young, female cancer patients – including fertility challenges that may follow after surgery, chemotherapy, radiation, and drug treatment. On Twitter @thechickmission.

Have an op-ed idea or submission for Gotham Gazette? Email

A Cruel Surrogacy Proposal That New York Must Reject Sun, 08 Mar 2020 05:00:00 +0000
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.

Have an op-ed idea or submission for Gotham Gazette? Email

Let's Legalize Surrogacy In New York The Right Way Thu, 27 Feb 2020 05:00:00 +0000
Cuomo's Unfinished Business: 3 Issues the Governor Says Will Form Basis of His 2020 Agenda gov cuomo fare evasion enf policy

Gov. Cuomo (photo: Kevin P. Coughlin/Governor's Office)

Governor Andrew Cuomo celebrated the achievements of 2019 on Friday, calling the legislative session an “overwhelming success” at a wrap-up news conference in the Capitol. During the January to June session, Cuomo and the state Legislature, with its two Democratic majorities for the first time in a decade, moved legislation dealing with a long list of issues, from combating climate change to expanding voting and reproductive rights, new gun regulations to a cap on annual property tax increases, and much much more.

However, while Cuomo did achieve most of what he outlined for 2019 in speeches delivered late last year and early this year, he said on Friday that three big issues remained unresolved: the Legislature did not pass bills to legalize adult-use marijuana or paid gestational surrogacy, nor to expand prevailing wage requirements that govern how union workers are paid on projects that receive public dollars.

When asked about what did not get done and would thus form the basis for his 2020 agenda, Cuomo first joked about the question and said that almost everything he wanted to get done was achieved -- “Are you kidding me?” the governor half-joked, “you want to go through what we didn’t do?”

“We did 99.9%,” Cuomo said. “It was an overwhelming success.” With a smile, he held up a glass about half-filled with water and said that, usually, that’s representative of a session and it can be debated whether it is half-full or half-empty. He then filled the glass almost to the top, to represent his view of the session’s success rate based on the goals.

“What didn’t get done?,” Cuomo continued, getting serious, “I’m disappointed that surrogacy did not get done, and I will continue to fight for that. Legalization of marijuana. Prevailing wage. Those are really the issues that did not get done, and I will revisit all of them next year.”

While he identified those three issues, there were several other items he hoped to accomplish -- like raising the cap on charter schools in New York City -- also left off the final, very lengthy tally of what did get done.

A look at the three issues Cuomo named to set the table for the future:

After calling it a “gateway drug” not long ago, Cuomo began moving on marijuana legalization in 2018 and indicated support for its legalization during his successful campaign for a third term, though he didn’t run on the issue. He then introduced adult-use legalization in his beginning-of-the-year budget proposal, but said that the two houses of the Legislature did not have the “political support” to pass the budget with marijuana legalization as the April 1 deal came together.

Legalization efforts continued in fits and starts, with some sniping between lawmakers and the governor, but ultimately the votes were not there in the Senate, there wasn’t significant momentum in the Assembly, and Cuomo did not appear to make a big push for a policy he had called particularly important as both a social justice issue and revenue-raiser for the state.

“It was clear they didn’t have the votes for legalization, then we went to decriminalization,” Cuomo said at the Friday press conference looking back on the session.

A decriminalization deal was reached in the final days of the session, creating a system of fines for possession of “small amounts” of marijuana, “reducing the penalty for unlawful possession of marijuana to a violation,” according to a press release from the Senate Democratic majority. It removes criminal penalties for possession of under two ounces of marijuana, and adds a penalty of $50 for possession under one ounce and $200 for between one and two ounces.

It also creates a program to automatically expunge past and future convictions. And, it adds “marijuana to the definition of “smoking” under the Public Health Law so that smoking marijuana will be prohibited in any circumstances where smoking tobacco is prohibited by law.”

“This monumental legislation will decriminalize small amounts of marijuana and establish procedures for record expungements for both past and future convictions,” according to a press release from the Senate Democratic majority.

Cuomo has pushed for marijuana reform since 2012. In that time, he has twice proposed legislation to categorize possession of small amounts of marijuana as a violation rather than a misdemeanor. The legislature did not pass either proposal. In 2014, Cuomo and the Legislature made medical marijuana legal across the state.

In 2018, Cuomo began pushing for marijuana legalization. He ordered a Department of Health study on regulated marijauna legislation, which determined that legalization of recreational use would have positive ramifications across the board, including reducing racial disparities in criminalization and incarceration rates. The report found that there have been more than 800,000 arrests for possession of small amounts of cannabis in New York, with the majority of those arrested people of color.

The Legislature also failed to pass a bill legalizing paid gestational surrogacy. The bill would have allowed gay or infertile couples to contract with a woman to serve as a surrogate.

Paid gestational surrogacy is legal in 47 states, but not New York, where it was banned under Governor Mario Cuomo in 1992. Current state laws also fail to define who the legal parents are when a child is conceived with a gestational surrogate.

“Before the end of the legislative session, we need to fix these two violations that are repugnant to what we believe and who we are and an injustice to the LGBTQ community,” Cuomo said in May, speaking on gestational surrogacy and the ‘gay and trans panic defense’ that was ultimately banned before the end of session.

Cuomo called legalizing surrogacy the next logical step after he helped pass marriage equality in the state in 2011, allowing LGBT couples to marry and to have children through a surrogate if they so choose. But, there were significant concerns from some lawmakers, especially in the Assembly, about protections for potential surrogates and the notion that surrogacy can be viewed as taking advantage of women from lower socioeconomic backgrounds.

Cuomo and others disputed those concerns, touting the legal protections for surrogates in the proposed legislation and pointing to the idea of letting women decided what to do with their bodies, but his advocacy did not prevail.

Prevailing Wage
Discussing the prevailing wage bill before the end of the legislative session, Cuomo decried the Democrat-controlled state Assembly, claiming its members didn’t want the bill to pass.

“The Assembly does not want to pass because it has no immediate effect on New York City,” Cuomo said Thursday on WAMC radio’s The Roundtable, referring to the fact that an updated prevailing wage bill had carved New York City building projects out, giving in to a call from real estate industry leaders and some affordable housing developers who said that an expanded prevailing wage could really hurt housing production.

The prevailing wage is a state-set wage that says if a project gets government subsidies and support, then its developers must pay workers a wage set by the state. It is primarily applicable to construction projects, and is especially prevalent in New York City, where construction abounds. Cuomo has been especially close to the building trades union, though he also has close ties to the real estate industry.

Cuomo’s favored bill would have changed the prevailing wage on Long Island and upstate, but not in New York City. “And the Assembly then basically said why should we pass it, you don't have any interest if it does anything immediate in New York City that's it,” Cuomo said on WAMC Thursday. The bill at hand at the end of the session would have mandated a study on New York City to potentially expand the wage there in the future.

Cuomo promised to return to each of the issues next year.

“I’m going to get on with the other part of my job, which is actually doing things,” Cuomo said at the press conference. “This has probably been the most successful legislative session,” he said.

by Noah Berman, Gotham Gazette

Read more by this writer.

Cuomo's Unfinished Business: 3 Issues the Governor Says Will Form Basis of His 2020 Agenda Sat, 22 Jun 2019 04:00:00 +0000
New York May Soon Reverse 1992 Ban on Having Children Through Surrogacy andrew cuomo gov photos albany

Sen. Hoylman, middle, with his husband & daughter, & Gov. Cuomo, right  (photo: governor's office)

When Marisa Horowitz-Jaffe and her husband, Doug Jaffe, wanted to have a baby, they faced numerous obstacles before the birth of their twins via a surrogate in a Dallas hospital eight years ago.

Their twins were born in a Texas hospital because the couple was forced to travel out of state in order to use a surrogate. New York is one of only two states in the country to criminalize surrogacy, a fact Horowitz-Jaffe was unaware of when her fertility issues began.

“Finding out surrogacy was illegal where I live, I was like, ‘What?’ It was like New York state giving me a middle finger,” she said. Paying for airfare, hotels, and other incidentals on top of fertility treatments, as well as the logistics of shipping temperature-controlled medications and transporting their premature twins back to New York added to an already stressful experience, she said.

The couple was not able to conceive a baby through intercourse. Determined to have a child, Horowitz-Jaffe went through rounds of in vitro fertilization (IVF) and embryonic transfers, including using egg donors. She went through multiple failed procedures and a miscarriage of a 20-week-old fetus before she and her husband made the decision to use a surrogate through an agency, which matched them with a woman in Texas.

Five years later, with 12 total rounds of IVF, and $250,000 spent out of pocket, Horowitz-Jaffe and her husband finally had not one child, but two. It would have been far easier, she said, if their surrogate had lived in the next town over, instead of thousands of miles away.

Now, a four-year-old bill in Albany could soon become law and prevent New Yorkers from having a similar ordeal. The bill would not only legalize surrogacy but add protections for surrogates, including health insurance provided by the intended parents. Called the Child-Parent Security Act and sponsored by Senator Brad Hoylman, a Manhattan Democrat, and Assemblymember Amy Paulin, a Democrat from White Plains, the bill aims to repeal the state’s 1992 ban on surrogacy, which specifically prohibits parents from hiring or compensating a person for carrying a child to term for them.

Bans in New York and elsewhere, many since reversed, came soon after a famous 1980s case. In 1985, Mary Beth Whitehead of New Jersey agreed to be a surrogate for a male-female couple and do so using her own egg, as the wife in the couple was diagnosed with multiple sclerosis. Whitehead was paid $10,000 for her role in the pregnancy, but after the birth decided to keep the baby and return the money. Conflict ensued, turning the incident into the famous ‘Baby M’ case, in which New Jersey’s Supreme Court ruled that paying women to bear children was illegal. Since then, surrogacies across the country have been gestational, meaning both a donor egg and donor sperm were used.

Marc Solomon, an LGBT activist who spent 15 years working on marriage equality, is overseeing a campaign in support of the Child-Parent Security Act through the Family Equality Council, a nonprofit organization.

Solomon mentioned ways in which lesbian parents or single women are not protected under current New York law, such as non-biological parents having to go through a costly adoption process to be legal parents of their children. Single women, according to Solomon, have no legal recourse if they have a child with a known (non-anonymous) sperm donor, as the donor could sue for custody of the child. Both of these scenarios would be avoided with the passage of the bill.

If the bill passes, it would allow non-biological parents to go through the court to get a certificate stating their legal parentage of a child carried by a surrogate. “[The bill] would put New York in the caliber of states that it’s usually associated with, like California, Washington state, Connecticut, other progressive states where surrogacy is allowed under certain circumstances, where everyone is protected,” said Solomon.

The bill was originally introduced in 2015 and, according to Paulin, could not pass the state Senate due to the Republican majority, which acted as a counterweight and oppositional force to the Assembly Democratic majority for most of the past several decades, until this year. Senate Minority Leader John Flanagan’s office did not respond to multiple inquiries for comment for this story. With the Senate now controlled by Democrats after last year’s elections and Democratic Governor Andrew Cuomo showing support for the bill in his 2019 state of the state policy book, the chances of it passing are greatly improved as the spring legislative session moves ahead.

“It’s never had as much traction as it’s had this year,” said Paulin.

With a new state budget in place as of April 1, the legislative session will now deal with a variety of other policy matters until its scheduled conclusion in mid-June. It’s unclear which of a long list of issues – including surrogacy legalization, rent regulation reform, marijuana legalization, and more – will find resolution.

An attempt to pass the Child-Parent Security Act was made earlier in the year with its inclusion in Cuomo’s 2019-2020 budget proposal. It was ultimately excluded from the budget deal that emerged among Cuomo and the legislative majorities. Hoylman, whose two children were carried by a surrogate in California, said changes had been made to the bill’s text and there was not enough time in the budget process to address them before it was voted upon.

Those changes, according to Hoylman, include ensuring surrogates have legal counsel and health insurance provided by the intended parents and were implemented following some opposition from advocacy groups. Cuomo’s policy statement also stipulates surrogates be allowed to make their own health care decisions, which would include their right to an abortion. Surrogates and intended parents would enter into a legal contract, ensuring what the governor’s policy proposal called “fully-informed consent.”

“The Governor believes New York surrogacy laws are antiquated and discriminatory against same-sex couples and couples struggling with fertility,” a Cuomo spokesperson said in a statement to Gotham Gazette. “That’s why he proposed righting this wrong by creating a new and long-overdue path for these New Yorkers to have children that provides legal protections for the parents-to-be and the women who choose to become surrogates. We look forward to working with the Legislature to address this issue."

“Overall, we need to make certain that wellbeing of surrogates and donors is the centerpiece of any legislation,” said Hoylman. A revision of the bill is expected to be made available in the next week or two. Both Hoylman and Paulin said they expect the legislation to be voted on this spring.

Even if the legislation becomes law, the surrogacy process itself will remain expensive, as it is not covered by health insurance. To Solomon, that’s an additional reason to legalize surrogacy in New York. “The expense of having to go in and out of state, and have a surrogate fly in and go to doctor’s appointments, and go to the delivery and travel back, adds thousands of dollars to the process,” he said. “If you’re concerned about making the opportunity of having a child available to people of lower means, it’s a case for legalizing and having surrogacy in New York.”

Horowitz-Jaffe hopes the bill will pass sooner rather than later, so other families do not experience what she went through to have her twins. “I don’t know why [politicians] have to make things harder. Going through infertility itself sucks,” she said. “And when they throw this on top of it? It doesn’t have to be this way.”

New York May Soon Reverse 1992 Ban on Having Children Through Surrogacy Mon, 22 Apr 2019 04:00:00 +0000
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

The Right Way to Legalize Surrogacy in New York Wed, 20 Feb 2019 05:00:00 +0000