Considering a New York Bill to Legalize Compensated Surrogacy

The New York State legislature is currently considering a bill (including the Assembly and the Senate versions) that would legalize gestational surrogacy and make it enforceable if in compliance with statutory requirements. The bill is called the “Child-Parent Security Act.” The existence of this bill may surprise some who believed that surrogacy was already legal and enforceable in New York. It is not. In this column, I will consider some pros and cons of legalizing and enforcing gestational surrogacy agreements.

Terminology

Before continuing, let me define the terms I will be using throughout the column. First, gestational surrogacy refers to an arrangement in which one or two people who wish to become parents (“intended parents”) hire a woman (a “surrogate”) to carry a pregnancy and give birth to a baby for the intended parents, a baby who is not genetically related to the surrogate. The term “gestational” arose to distinguish this practice from traditional surrogacy, a type in which the woman is the genetic mother of the child she has agreed to surrender to the intended parents.

The Cautionary Tale

The story that likely played a role in motivating New York to prohibit compensated surrogacy in the first place was the case of In re Baby M. This New Jersey dispute arose between the Sterns, the intended couple, and Mary Beth Whitehead, the surrogate. Whitehead was a traditional surrogate who agreed to be artificially inseminated with Stern’s sperm. After she had taken the pregnancy to term and given birth, Whitehead decided that she wanted to keep the resulting baby. She made threats to the intended father to kill the baby and/or herself. When the case made its way up to the New Jersey Supreme Court, the court refused to enforce the contract, finding that the surrogate, Whitehead, was the mother, that her parental rights did not terminate, and that Mrs. Stern did not become the child’s mother. It concluded that Mr. Stern was accordingly the baby’s father, because of his biological connection. Having identified the parents, the judge vested custody in Stern but awarded visitation to Whitehead.

The Baby M. case highlighted one major downside of surrogacy. At least when the surrogate is genetically related to the baby, she might bond to the child during pregnancy or labor and not want to surrender him or her at birth. This possibility, moreover, raises the question whether surrogacy contracts are actually contracts for the sale of a baby. To the extent that the surrogate is bonding to a baby as her own before giving him or her up to the intended parents, the act of surrendering the child in exchange for money looks a lot like baby selling. And even if there is no bonding—as many women may not bond to the babies—the strong intuition that one who gives birth to a baby is that baby’s mother supports the baby selling narrative about surrogacy as well. As most of us would regard baby selling as immoral, it would seem to follow that states should prohibit surrogacy agreements and should not enforce them.

Some Responses to the Baby selling Narrative

Rejecting the baby selling narrative involves re-characterizing what happens when intended parents contract with a surrogate. We can think of the surrogate as selling her work rather than the baby and of the intended parents as lending raw materials to the surrogate to perform her compensated labor. Key in this alternate narrative is the notion that the baby is and always was—before it even became a baby—the offspring of the intended parents. If it comes from their gametes, then it is easier to consider the child theirs. But even if it comes from donated gametes, the gametes were donated to them, and they placed the gametes in the custody of the surrogate for the specific purpose of having her “grow” them into a baby for the intended parents.

One analogy that can be useful in adopting the pro-surrogacy narrative is the case of an intended parent who uses donated gametes to impregnate herself. That is, a woman decides to have a baby but cannot use her own eggs so she pays for sperm and eggs and undergoes in vitro fertilization (IVF) to become pregnant with them. In such a case, it is easier to appreciate that someone can part with what could have become their own children (gametes) without being accused of baby selling.

Pregnancy and gamete donation are not the same, however. There are two particularly salient features in the contrast between the two. First, gametes are in no way a child at the time of the compensated donation, while the surrogate does surrender a child who has been in her custody throughout a pregnancy. Second, the surrender of gametes—especially sperm—seems like a trivial act compared to the enormous contribution of pregnancy.

In response to these distinctions, however, one could point out that unlike in surrogacy, the sperm donor whose “labor” is trivial is more appropriately labeled a “seller” of his gametes (and therefore arguably of the potential babies) than a worker being paid for his hours. A sperm donation, in other words, is not an effortful task where the labor must be compensated; the man is selling his sperm, not his labor. Yet we allow sperm donations. Why, then, not permit surrogacy as well, a practice in which a woman can more plausibly be described as working for the money than can a sperm donor? And as for the surrender of the baby at birth, if everyone anticipates this in advance, at the time of the embryo transfer, then we can readily conceive of the baby as having always “belonged to” the intended parents, even as the surrogate did the necessary “building” to turn the parents’ raw materials into a child. In this narrative, the surrogate is like a nanny who cares for another’s child for nine months.

Practicalities

We could focus exclusively on the philosophical implications of surrogacy and how best to think about what the surrogate does when she carries a baby, gives birth, and surrenders the baby to people who have paid her. And there are arguments for both sides, as I have suggested above. But there are also practical consequences to a law that either permits or forbids surrogacy.

New York State law currently prohibits (and in compensated cases even criminally punishes) surrogacy. It has done so for decades. Yet the result has not been to keep New York residents from relying on this form of reproductive assistance. New Yorkers still use surrogates. They just try to arrange things so that the laws of other, more surrogacy-friendly, states apply. Part of what happens as a result of these arrangements is that neither intended parents nor surrogates know for certain which law will apply and thus how their stories will end.

If there is a conflict, then maybe a court will enforce their agreement and deem the intended parents the actual parents. But a court could come out the other way. It might say that a woman who was pregnant with and gave birth to a child is the mother, even though the intended mother wanted the child all along and the surrogate did not.

And what if none of the parties wants the child—who is legally responsible in that event? Having the parties unclear on what might happen puts the child’s future in jeopardy. Regardless of what one thinks about surrogacy itself, it is in everyone’s interests to have certainty about who a child’s parent or parents are. Keeping New York’s law unbendingly resistant to surrogacy contracts, when most other states are more or less tolerant of them, virtually ensures that there will be battles that threaten the child’s best interests. And the child is plainly innocent of any wrongdoing, even if one or more of his or her progenitors acted wrongfully.

Need

Are there any affirmative arguments for surrogacy? Above I discuss whether the practice is or is not baby selling, but the fact that an arrangement might not qualify as baby selling is hardly a positive argument in favor of the arrangement. At best, it refutes a point against it. But why do many people strongly support surrogacy rather than merely not opposing it? Is there any reason to legalize it, beyond the collateral effects on children of criminalizing what their parents have done to bring them into the world?

There is such an argument, but I am ambivalent about making it. The argument is that some people are either infertile or single or in a same-sex male couple or are otherwise in living arrangements that do not admit of reproduction without assistance. For such individuals, the right to procreate requires the participation of a surrogate.

Through a surrogate, a same-sex male couple can have a child who has the genes of one of the men in the couple. The right to reproduce is a fundamental right and, on this argument, it should extend to the use of a surrogate, given that she may provide the only path to biological reproduction for many individuals and couples.

Why am I ambivalent about this argument? For two reasons. First, I have a hard time imagining that many women with a truly comfortable income will be interested in serving as anyone’s surrogate. Like people who want to sell their kidneys, women who wish to be surrogates are probably in need of more money than they have. (They may not, however, be desperate, because intended parents would probably want to screen out the desperately poor as candidates for surrogacy). Thus there is something disturbing about the optics of having those with a lot of money paying those with less money to give birth to the babies of the former. Taken to the extreme, we have The Handmaid’s Tale.

The second reason I am ambivalent is that there are many children who currently do not have a home or a family and would be delighted to have parents to love them. When people use a surrogate, they are rejecting the path of adoption in favor of that of surrogacy. But I tend to see the right to have children as fulfilled by adoption as well as procreation. Perpetuating one’s genes, as opposed to having a child, seems less significant. Granting the blessing of the State to this complicated surrogacy arrangement may accordingly deny an existing child a loving home.

There are responses to these concerns, of course. First, poorer women perform all sorts of menial tasks for wealthier people, and their contracts are enforceable. Housework is one obvious example. And it is hardly helpful to such women to ban what they are doing, thereby either denying them a lucrative option or taking an arrangement into which they will enter anyway and making it less predictable. The same, of course, could be send for organ sale.

And on the adoption point, the same criticism could be leveled at people having babies the traditional way and at people using reproductive technologies other than surrogacy. Why should the importance of adoption suddenly become an issue for the one category of people who happen to need surrogacy to produce children of their own? It is perhaps unfair to burden them in this way. We should encourage adoption by everyone, not just by those who want desperately to reproduce biologically and need a surrogate to do so.

So I am left slightly favoring legalization. For all the reasons I list above, I have some qualms about surrogacy, but I ultimately think things look worse if the practice remains illegal. For that reason, I favor the New York bill that would permit and enforce surrogacy contracts, but I won’t be marching in any rallies for its passage.