Cuomo to Consider Lifting New York Surrogacy Ban?

New York Court of Appeals

Since 1993, state law in New York has voided and penalized gestational surrogacy contracts. This effectively bans surrogacy as a viable reproductive assistance technique within the state. However, Governor Andrew Cuomo is having his Task Force on Life and the Law take a close look at the subject, according to this New York Post article from October of last year. This leaves many parents, both homosexual and heterosexual couples, hopeful as to the possibility of change.

The New York Post quotes Professor Valerie Guttman Koch, an advisor to the task force, as confirming that the task force is advising Governor Cuomo on the matter of commercial surrogacy. “I see no moral qualms with the practice” states Professor Koch, currently a visiting professor at the Chicago-Kent College of Law. Her academic specialty falls within the intersection of law, medical practice, and ethics. “Gestational surrogate pregnancy contracts should be a viable option for potential parents.”

This review of current legislation by the Cuomo administration follows the proposal of a bill, the Child-Parent Security Act, which would legalize gestational surrogacy contracts within the state.

In a gestational surrogacy agreement, a surrogate mother is paid to bear a child to term – usually on behalf of a couple who cannot have children for medical reasons. A child is implanted within her womb using IVF (in vitro fertilization) treatment. Her own eggs are not used, and she is not genetically related to the child she carries, which is turned over to his or her intended parents after being born. Compensation for a surrogate mother can range from $35,000 to $65,000, with her medical care and other expenses also being covered. It is paid for entirely by the intended parents, who may also have to pay between $4,000 and $8,000 (on average) to an egg donor.

The Child-Parent Security Act was introduced by state Senator Brad Hoylman (D-Manhattan) and Assemblywoman Amy Paulin (D-Westchester), but the bill would gain a great deal of momentum if it had the support of Governor Cuomo and his administration. Governor Cuomo's father, Mario Cuomo, signed the 1993 prohibition of surrogacy agreements into law during his tenure as governor of New York.

Gestational Surrogacy and Gay Rights

The current ban on gestational surrogacy agreements in New York has been challenged since its introduction in 1993. Its existence has forced many hopeful parents to repeatedly travel out of state for the procedure, with the entire process often accumulating fees as high as $150,000. Given the nature of pregnancy, these trips may have to be taken with little warning, and with no possibility of rescheduling. The inconvenience has put surrogacy out of reach of many who might otherwise have availed themselves of the widely-supported practice.

Gestational surrogacy is a widely accepted method of reproductive assistance, with many state supreme courts comparing the ethics of surrogacy to those involved in adoption.

In recent years, other legal decisions have increased the push for New York legislators to overturn the surrogacy prohibition. With the US Supreme Court's decision to legalize gay marriage, homosexual couples have turned their attention towards their desire to have families. This is something that most egg donor and surrogacy agencies already individually support, but homosexual couples have faced an uphill battle entirely separate from that of earning recognition for their right to marry.

Some states, only recognize surrogacy agreements if they involve the intended parents being unable to conceive for medical reasons. For example, Illinois state legislation, while overall very promising in regard to its support of gestational surrogacy, specifically highlights the requirement of a medical reason for engaging the services of a gestational surrogate:

...(2) he, she, or they have a medical need for the gestational surrogacy as evidenced by a qualified physicians affidavit...(Source: P.A. 93-921, eff. 1-1-05.)
It also makes no specific mention of homosexual parents, despite other recent progress in the affirmation of the right of homosexual parents to adopt.

Where New York Stands

Under current legislation, New York regards gestational surrogacy contracts as being contrary to the public good. As such, they are deemed legally unenforceable and voided. Those who are party to such a contract face a fine of up to $500 each, while those who assist in their arrangement face up to $10,000 in fines – as well as forfeiting any fees paid to them.

This is one of the harshest approaches to gestational surrogacy taken by any state in the country. At present, Michigan takes a similar approach, with more severe penalties for the parties involved. Other states (including Indiana, Kentucky, Louisiana, and Nebraska) void surrogacy agreements, but they do not take the added step of penalizing those involved.

Only Arizona and the District of Columbia take the additional step of outright banning surrogacy altogether – and establishing the child's parentage. Under Arizona law, for example, the surrogate is legally established as the mother of any child born under a surrogacy contract – and, if she is married, her husband is also established as the legal father. No provision is made, under Arizona law, for the intended parents to make any kind of a claim to the contrary.

It is hoped that, as states such as New York and Michigan set a highly publicized precedent for reversing their regard for surrogacy, Arizona and Washington, D.C. will feel increased pressure to follow suit. Cuomo’s decision to review New York’s 1993 policy is a step in the right direction towards this end, with many in the fertility