On April 2, New York State lawmakers drew a line under a long-running conflict regarding the legalisation of commercial surrogacy. In commercial surrogacy, wealthy "commissioning parents" financially compensate mothers for the momentous act of giving birth to, and handing over, their baby before walking away. Long illegal in New York, commercial surrogacy is now allowed under law. Governor Andrew Cuomo has been pushing for this bill to become law for some time, and he's now done it by tying it to pandemic funding measures.
Commercial surrogacy is the practice of allowing people to rent women’s bodies for the purposes of gestating a child from conception through delivery, and then that woman gives the baby to those who paid for it.
Commercial surrogacy is unlawful in most democracies, on the basis that it is bad for women and bad for children.
The Bill was highly contested, notably by Manhattan Assembly member Deborah Glick, the first openly lesbian woman in the legislature back in 1991, and feminist Gloria Steinem. Glick said commercial surrogacy “is pregnancy for a fee, and I find that commodification of women troubling.” Among early champions of birth for hire was Governor Andrew Cuomo.
While everyone was distracted by the coronavirus pandemic, a budget was approved which included legislation sponsored by Brad Holyman, a Manhattan State Senator, and father to two daughters he purchased from different mothers under commercial surrogacy contracts.
The other sponsor was Amy Paulin, a member of Westchester Assembly. In the final days of the 2019 legislative session of spring 2019, Paulin failed in a last-ditch attempt to whip enough votes for the Bill. By June 20 it was dead. Carl Heastie, Assembly Speaker, said
“Many members, including a large majority of women in our conference, have raised important concerns that must be properly addressed before we can move forward.”
He stressed that women's “health and welfare” were top priority, and said he looked forward to “continuing this conversation in the coming months.” After that, the democratic process seems to have failed.
The budget bill passed on April 3, 2020, amid widespread panic about the economic impact of coronavirus. New York has seen the highest death rates in the country, and it is estimated that the State will lose $10 billion in tax revenues.
Perhaps some of that shortfall will be made up by tax on the lucrative legal fees, agency fees and intensive medical procedures which comprise the commercial surrogacy industry. New York will allow residents to enter into paid surrogacy contracts as of February 15, 2021. If women can't find better jobs in the post-pandemic economy, the option of selling their baby will be available.
Feminists and Catholics were united in condemnation of the law. Commercial surrogacy is now legal in all but three US states. Kathleen Gallagher, of the New York State Catholic Conference, criticized the inclusion of surrogacy in a budget bill during the COVID-19 pandemic.
“We simply do not believe that such a critical legal and moral decision for our state should have been made behind the closed doors of a Capitol shut off to the public,” she said. “The new law is bad for women and children, and the process is terrible for democracy.”
Jennifer Lahl of the Center for Bioethics and Culture and the campaign Stop Surrogacy Now wrote an open letter to Cuomo regarding the unethical nature of commercial surrogacy.
"It fundamentally violates the rights of those without whom there would be no smiling babies: the so-called surrogate mother or ‘gestational carrier’ (misogynist labels as she is a real life woman whose body grows the child for nine months until she gives birth to it)."
New York’s long-held resistance to commercial surrogacy dates from the Baby M case. In 1985, Mary Beth Whitehead needed money and agreed to embark on motherhood using the sperm of William Stern, whose wife had multiple sclerosis, for the sum of $10,000.
When Whitehead gave birth to her daughter, she changed her mind about giving her up. In the ensuing legal battle, Stern eventually won custody and Whitehead was forced to give up her daughter. Reflecting on events, in 1988 the New Jersey Supreme Court ruled that paying women to bear children was illegal and "potentially degrading."
Another outcome of the Baby M case was that pregnancies under surrogacy contracts use donor eggs, as opposed to the mother's own eggs. The intention was to conjure a legal fiction that the mother is no more than a "carrier" or a "vessel" for the "products" which contain some of the commissioning parent's DNA.
The intention is to put as many conceptual layers as separation as possible between the mother and the baby which is a part of her until it emerges from her body. These efforts strike me as fanciful. Pregnancy is the beginning of the long, complex process of motherhood, not a prologue after which the mother's role can simply be written out of the story, and her importance to her baby denied.
It is troubling that New York, in the midsts of pandemic emergency, has joined the shrinking ranks of democracies which allow women's bodies, and the mother-child relationship, to be exploited with such ruthless commercialism.
While same sex couples and infertile couples' desire for genetically-related offspring is understandable, it is a reach to claim that those desires should be elevated to legal rights over the bodies of poor women, and their babies. To my mind, it is abhorrent to use a woman for this purpose, and effectively kidnap her baby. How does one justify to the child, when they come of age, that their own mother was paid off and shown the door? What does such a transactional approach to "building a family" communicate to the child about the role of women in this world?
Commissioning parents routinely travel to Asia and Eastern Europe in search of legal access to potential mothers. India is now off the international fertility tourism map, having shut down its "Baby Farms" such as the Akanksha Infertility Clinic, which were collectively worth $400-million-per-year at the height of the "rent-a-womb" industry.
In Australia, France, Britain, Germany, Italy, Ireland, and Spain, governments agree that commercial surrogacy is too exploitative, and the costs to the paid-for children too high, to sustain it. With only two states now holding the line, the United States is in the same bracket as Mexico, Nepal, and various former Soviet states, in allowing the wealthy to buy babies from their mothers.
As a beneficiary of this invidious form of exploitation, Senator Hoylman publicly struggles to square the ethical circle. Should he let his daughters spend part of Mother's Day with their mothers, or erase them altogether by simply celebrating paternity? It is such a conundrum, he reached out to his 18,000 Twitter followers to crowdsource a solution.
If only everything in life were as simple as having male dominated social norms, money and the law on your side, especially the stubborn way that women - and mothers - make their presence felt, even when so-called progressives contrive to reduce them to absent, dispensable commodities.