In Two States, Debates Over the Ethics of Paid Surrogacy

Though there aren’t many good statistics on how many babies are born in the U.S. each year through surrogacy arrangements, it would be fair to say the process is rare. Even so, with many families struggling with infertility and gay couples looking for ways to have children, interest in surrogacy is growing. And now the question of whether women can be compensated for carrying other people’s babies is taking center stage at two state legislatures this year.

New York—one of three states where paid surrogacy is banned—is already embroiled in a surrogacy debate for the second consecutive legislative session, while South Dakota legislators are taking up the issue for the first time in years. 

Part of the debate is about the types of surrogacy that should be legal. The two main surrogacy variations are gestational, when a woman is impregnated with a donor egg and sperm, usually from the intended parents, or genetic, when a woman is artificially inseminated with donor sperm but uses her own egg. Genetic surrogacy, which is far less common, is only legal in a few states. 

There’s also a difference between paid surrogacy—also called commercial surrogacy—in which the surrogate mother receives compensation, and altruistic or compassionate surrogacy, where the mother receives no money, but likely has her medical expenses paid for by the intended parents.

Under current New York law, paid surrogacy is illegal and punishable by a fine, while compassionate surrogacy exists in a legal gray area as it is not legally binding. Activists have called the laws discriminatory to LGBTQ and infertile couples. 

Last year, a bill known as the Child-Parent Security Act would have legalized paid gestational surrogacy, but failed after an unexpected coalition—including the Catholic Church and the Women’s Liberation Front—joined together to oppose the measure. Both organizations cited concerns that low-income women could be exploited by the legal framework the bill proposed. A group of feminists led by Gloria Steinem also wrote a letter to the governor, citing concerns that the bill “puts disenfranchised women at the financial and emotional mercy of wealthier and more privileged individuals.”

In December, Gov. Andrew Cuomo once again announced that he would make repealing the state’s surrogacy ban  a priority. State Sen. Brad Hoylman reintroduced the Child-Parent Security Act in January with the governor's support.

“New York law has failed to keep pace with medical advances in assisted reproduction,” the bill reads. “Because of existing New York laws, couples facing infertility and same-sex couples are forced to go out of state in order to have a child with the assistance of a gestational carrier. This is overly burdensome to the parents, who have often struggled for many years to have a child.”

Dr. Wendy Chavkin, a professor of family health at Columbia University, was one of 11 medical experts who wrote to the New York legislature last year opposing the bill over concerns that it failed to protect women’s rights and their health. “In our opinion, his bill is heavily weighted towards the interest of the people who are intending to become parents,” she said.

Chavkin has since been consulting with state Sen. Liz Krueger, who plans to introduce a competing surrogacy bill that would legalize both gestational and genetic surrogacy. A draft of the bill shared with Route Fifty notes other key differences in Krueger’s proposal, including a longer in-state residency requirement for intended parents and surrogates. Her measure would also require the intended parents to cover surrogates’ medical expenses up to six months after the birth, miscarriage, or termination, and longer if there are complications.

Krueger’s bill restricts surrogacy to women younger than 35, while saying a woman can’t have more than five children through surrogate pregnancies. It also allows the person acting as a surrogate to terminate the contractual agreement at any time, either to carry the child to term or to seek an abortion. If a surrogate mother terminates the agreement, she must repay the intended parents any surrogate fees paid to her.

Chavkin said that legislators should think carefully about factors like maternal age and number of pregnancies, both of which can increase complication risks. “A surrogate died in California last week. We should be paying attention,” she said. “It’s good for the public at large if we take into consideration the rights and health and safety of everyone involved in surrogacy agreements.”

New York isn’t the only state considering a surrogacy bill right now. In a state where surrogacy is currently legal, some lawmakers want to head in the opposite direction. A Republican representative in South Dakota introduced a bill this week to ban commercial surrogacy in the state, making entering into such agreements a misdemeanor crime. The measure would not prohibit altruistic surrogacy agreements.

Rep. Jon Hansen did not return a request for comment, but when introducing the bill stated that commercial surrogacy “makes a commodity out of mothers and children.” His bill has already passed a House committee and won 44 cosponsors in the state House and Senate. 

Sharmila Radruppa, a professor at the University of Texas who has studied India’s decision to ban surrogacy after more than a decade of legalization, said that getting rid of established surrogacy networks isn’t easy. “It’s difficult to think that legislation alone will cut those ties,” she said. “It moves surrogacy into different places that increase the vulnerability of the women and decreases protections for intended parents.”

If South Dakota bans paid surrogacy, infertile or LBGTQ couples who want to be parents may find themselves heading to states like California and Texas, which have become hubs for surrogacy arrangements.

Advocates like Radruppa have suggested broader nationwide initiatives to protect women who serve as surrogates, like a registry to track health outcomes, an independent union to advocate for surrogate mother rights and guaranteed health insurance for the women for at least three years after birth. “These are about human relationships,” Radruppa said. “But surrogacy as it is now is very contractual.”

Chavkin said that the patchwork of surrogacy laws across the country makes it hard to ensure the agreements are made safely, but noted that federal legislation isn’t likely anytime soon. “This is very difficult to legislate,” she said. “And it’s very hard for a local jurisdiction to enforce policies when people can just go elsewhere.”