Contractual Surrogacy Clears First Committee

Albany Update recently reported that Gov. Andrew Cuomo has publicly stated his support for paid surrogacy legislation, and has included such legislation in his budget proposal.

Since that time, Asm. Amy Paulin (D-Scarsdale) has amended her proposed paid surrogacy bill, which is known as the Child-Parent Security Act (CPSA) (Bill A.1071-A-Paulin). Furthermore, on February 27, the Assembly Judiciary Committee approved the CPSA by a vote of 14-7. (All six Republican committeemembers voted against the bill, as did Democratic Asm. Rebecca Seawright, D-Manhattan). The bill will now move to the Assembly Codes Committee for further consideration. It is possible that Assembly leadership intends to pass Asm. Paulin’s bill for the first time, and to do so before the state budget is finalized.

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In her bill memorandum, Asm. Paulin contends that under existing law, prospective parents are “forced to go out of state in order to have a child via gestational carrier” (emphasis added). This is nonsense. New Yorkers who wish to have children may seek to become parents through traditional means, through adoption, or through the use of various assisted reproductive technologies. There are many available options for persons wishing to become parents, and no prospective parent is “forced” to do anything—let alone to pursue paid surrogacy. It would be more accurate to say that current law inconveniences a very small subset of New Yorkers that wish to pursue compensated surrogate parenting contracts and are not allowed to do so within the state. This inconvenience to a very small group of people is not a viable basis for creating a new legal framework for parenthood.

The State of New York bans compensated surrogate parenting contracts for a reason; such agreements are inherently exploitative towards women. The CPSA ignores this concern out of existence, and would, in essence, allow New Yorkers to rent women’s wombs. Under the proposed Section 581-502 of the Domestic Relations Law, compensation “may be paid to a donor or gestational carrier based on medical risks, physical discomfort, inconvenience and the responsibilities they are undertaking in connection with their participation in the assisted reproduction.” Also, the CPSA’s requirement that the parties to a compensated surrogate parenting contract be represented by counsel does not eliminate the inherently unequal power structure that such contracts create between the (usually wealthy) individuals who contract for surrogates and the (usually low-income) women who make themselves available as surrogates. Thus, the CPSA is problematic from a social justice perspective.

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The practical challenges created by the CPSA would include the following:

  • The proposed Section 581-402(b)(2) of the Domestic Relations Law would allow “any two adults who are intimate partners” to enter into compensated parenting contracts with gestational carriers. Despite extensive amendments to the bill, the bill’s sponsors still have not seen fit to define the term “intimate partners.” The vagueness and looseness of this language would make it impossible for courts to know who is eligible to enter into a compensated parenting contract.
  • The CPSA would allow prospective parents who do not live in New York to obtain judgments of parentage in New York courts if a woman that they have paid to be their gestational carrier gives birth to a child here. Does the State of New York wish to become a destination state for paid surrogacy?
  • The proposed Section 581-402(b)(2)(i) of the DRL would allow certain married persons to enter into compensated parenting contracts with gestational carriers without the consent or involvement of their respective spouses. Specifically, this section would—in certain circumstances—allow a married person who is separated from his/her spouse to become a parent through a surrogacy arrangement. This language utterly fails to respect the institution of marriage, ignores the possibility that separated spouses might reconcile, and facilitates the placement of children in households that are potentially unstable.

New Yorkers for Constitutional Freedoms calls upon all Members of the New York State Legislature to vote against the CPSA.