Testimony Regarding Gestational Surrogacy

Published on May 24th, 2018

Photo by Joey Thompson on Unsplash

Following is testimony of the New York State Catholic Conference submitted in writing to a hearing of the Assembly Committee on Judiciary and Assembly Committee on Health regarding Gestational Surrogacy , 250 Broadway, New York, N.Y.

May 24, 2018

Chairman Dinowitz, Chairman Gottfried, and Honorable Members of the Assembly Judiciary and Health Committees, thank you for the opportunity to present testimony on the topic of compensated gestational carrier surrogacy contracts.

Currently, legislation (A.6959-A) is pending which would legalize commercial “gestational surrogacy,” or “collaborative reproduction,” which involves a monetary contractual arrangement whereby a woman who is genetically unrelated to the child, will bear that child for someone else, with the intent of relinquishing the child at birth. Human embryos are created in a laboratory through in vitro fertilization (IVF), using egg and sperm that may or may not be from the intended parents, then transferred to the uterus of the surrogate mother.

At the present time, New York Domestic Relations Law declares such surrogacy contracts to be contrary to public policy, void, and unenforceable. Baby brokers who assist in arranging such contracts are liable for up to a civil penalty of $10,000 and forfeiture of the fee received in brokering the contract; a second violation constitutes a felony. Importantly, this policy was signed into law in 1992 by then-Governor Mario M. Cuomo, at the unanimous recommendation of the NYS Task Force on Life and the Law, with bipartisan legislative support. The New York State Catholic Conference advocated for this policy in collaboration with the New York chapter of the National Organization for Women and other diverse voices.

In December of 2017 a deeply divided NYS Task Force on Life and the Law released a new report on surrogacy entitled “Revisiting Surrogate Parenting: Analysis and Recommendations for Public Policy on Gestational Surrogacy.” Fifteen of the members signed a majority report recommending a repeal of New York’s ban on commercial gestational surrogacy and a complex web of regulations governing the practice. Seven members signed a minority report recommending that New York’s ban be maintained. We concur with the minority and their well-documented report, attach it with this testimony, and urge that you read it in full. We summarize here the primary harms of surrogacy as detailed in that minority report.

Surrogacy treats children as commodities to be manufactured, bought and sold. Children are human beings with inherent rights and dignity, not products to be purchased and sold. As the minority notes in its report: “When a surrogacy contract provides that a lower fee is paid to the surrogate when the child is stillborn than when he or she is born alive, or when it provides that some fees otherwise due are withheld until the surrogate surrenders the child to the intended parents, it is hard for an objective observer to say that all of the payments are for the surrogate’s services during pregnancy” and not for the child.

We believe that the language of the current legislation (A.6959-A) is dishonest and misleading when it states in Section 581-502 (a) that “Under no circumstances may compensation be paid …for the relinquishment of a parental interest in a child.” The relinquishment of the parental interest in the child is the specific reason that the legislation exists and that a monetary transaction will occur. “Compensated gestational carrier surrogacy” is baby selling.

Removing New York’s prohibition on surrogacy contracts would be inconsistent with numerous statutes currently on the books in our state. Our laws reject the sale of human organs, prohibit the selling of babies, refuse to recognize contracts to surrender parental rights prospectively, or to have an abortion. Our laws also limit reimbursements in traditional adoptions, out of a recognition of the dangers of economic exploitation.

Just as New York State Public Health Law Section 4307 prohibits the sale and purchase of human body parts, the renting of a female womb and the purchasing of the child within the womb should be prohibited.

Surrogacy intentionally fractures families. Surrogacy encourages the creation of children conceived with the intent to separate them from one or all of their biological parents. It therefore deliberately divides the genetic, gestational and social relationships of children with their parents.

When any sperm, egg and uterus can be ‘combined’ to ‘make’ a baby, the potential exists for a child to have up to six parents — the male sperm, two female eggs (one for the nuclear DNA, and one for the mitochondrial DNA) the surrogate mom (womb), the intended dad, and the intended mom (or second dad, or second mom).

The surrogacy arrangement compels an unnatural and unhealthy act: telling a mother not to bond with the baby she bears in her womb. For more than a century, prenatal psychologists have been researching the imprint that the time spent in utero leaves on the human being. What children experience in the womb in which they are carried will deeply affect their physical and mental health. As the baby develops in the surrogate mother’s uterus, he or she is sustained by blood vessels the surrogate has developed exclusively for this child, and is fed nutrients including calcium from the surrogate’s own bones. Decades after that baby is born, the surrogate mother will likely retain some of the baby’s cells in her body, and likewise, the child will retain some of the surrogate’s in his or hers. No one can seriously claim that a gestational surrogate can prevent herself from bonding with the child she carries for another, as if she is simply a breeder bus that a passenger hops on for a few months, then hops off into the waiting arms of the “intended” parents.

For all newborn babies, it is highly stressful for them to be separated from their birth mothers. Permanent separation, as in the case of gestational surrogacy, can result in confusion, pain, loss and abandonment felt by donor-conceived children, who may never know their true origins or experience the continuation of the natural parent-child bond that was forged over a nine-month period. The personal testimonies found at www.anonymousus.org are enlightening, and many of them tragic, in this regard.

Surrogacy exploits women, particularly poor women. Reproductive commerce is human exploitation. Commercialization denigrates the dignity of women by degrading pregnancy to a service. We believe that women deserve to be treated as more than incubators. Every woman is a unique human being, endowed with inherent human dignity.

In states where surrogacy is permitted, surrogate services are advertised, surrogates are recruited — most often on college campuses, in poor neighborhoods, and on military bases — and operating agencies make large profits. The minority members of the New York Task Force on Life and the Law did the math and found that a surrogate mother in a typical pregnancy would be earning far less than New York’s minimum wage per hour.

When a poor woman is bearing a child for a couple who is much better off financially, it is an unequal transaction, and that can easily involve coercion, uninformed consent, and violations of human rights. Surrogacy is not without serious health risks to women. Those who provide the eggs are flooded with fertility drugs for superovulation and risk ovarian hyperstimulation syndrome, which can be life-threatening. Those who are surrogates must receive multiple injections of synthetic hormones for embryonic implantation, some of which have not been approved by the FDA for fertility use. If the pregnancy is successful, the surrogate then must endure nine months of challenges and potential health problems, and a battery of prenatal tests that may lead to contractually-obligated abortion or “fetal reduction” if too many embryos grow in her uterus.

Those who live in dire poverty do not have genuine “freedom of choice” in making a decision to carry another person’s child. The social context within which women make these often difficult decisions must be taken into account. For example, military wives tend to get married and have babies at very young ages, are low-income, are often alone while their husbands serve overseas, and are concentrated in states with large military bases such as Texas, California and Florida. Surrogacy brokers and fertility clinics flourish in these states, and military publications like Stars & Stripes and Army Times carry surrogacy advertisements with the lure of easy money.

This is not to suggest that women lack the capacity to make informed decisions, nor to be disparaging toward women, nor to treat them as victims. It is simply to state that there are enormous pressures put on women, particularly lower-income women, and often, they are not fully informed of the risks involved with surrogacy. That is not free choice; that is exploitation of a particularly vulnerable population for their reproductive capacity, driven by profit-making private enterprise.

Surrogacy contracts, which would be legal and recognized under the terms of pending legislation (A.6959-A), are grossly imbalanced against the surrogate mother. Standard contracts require her to undergo invasive tests and treatments, forego sexual relations with her spouse for certain periods of time, and compel her to consent to an abortion if demanded by the “intended” parents. The contracts also contain clauses that would impose significant monetary penalties on the surrogate if she fails to uphold all of these requirements. This is free choice?

Most countries, including all of Europe, prohibit surrogacy contracts. New York State should follow the lead of the European Parliament, which in December 2015 condemned all forms of surrogacy, both altruistic and commercial, as a violation of basic human rights. It declared that surrogacy:

“…undermines the human dignity of the woman, since her body and its reproductive functions are used as a commodity; considers that the practice of gestational surrogacy which involved reproductive exploitation and use of the human body for financial or other gain, in particular in the case of vulnerable women in developing countries, shall be prohibited and treated as a matter of urgency in human rights instruments.”  (Annual Report on Human Rights and Democracy in the World and the European Policy on the Matter, Rights of Women and Girls, Paragraph 114)

Insufficient evidence of safety. The 2017 Minority Report of the NYS Task Force on Life and the Law is meticulous in documenting the scarcity of long-term, large-scale studies of the effects of gestational surrogacy on the children born of the process, the surrogate mothers who carry them, and the siblings of the children born. Measurable evidence, they say, is “scanty, equivocal, sometimes biased, and often anecdotal.” Their bottom line: insufficient evidence should lead the state to exercise extreme caution and avoid taking unnecessary risks.

Economic considerations overriding grave moral concerns. As assisted reproductive technologies (ARTs) are increasingly commercialized and relied upon for surrogacy contracts, there is increased likelihood that economic incentives will override the moral considerations of these practices. Commercial surrogacy contracts will result in an increased demand for in vitro fertilization (IVF), and a resulting increase in the loss of early human life. The minority report of the Task Force calculates that three to six human embryos created for possible use in IVF are aborted, discarded or stored indefinitely for every one human embryo successfully brought to birth. We find this calculation to be unacceptable.

Conclusion

In the 2017 majority report of the NYS Task Force on Life and the Law, NYS Health Commissioner Howard Zucker calls surrogacy a “difficult” and “controversial” issue, and the report concedes that “there remain concerns about the well-being of children born through surrogacy, the surrogate and her family, and intended parents and their family” among most Task Force members. We respectfully suggest that with so many concerns outstanding, this is not the time to be experimenting with the lives of women and children.

As outlined in the minority report of the Task Force, the legalization of gestational surrogacy contracts will foster grave violations of human rights and human dignity. Commercial surrogacy is a multi-billion dollar business which exploits women, has little regard for morality or ethics, and violates the basic principles of social justice. We do not believe it to be in the best interests of children, women, families or society, and we strongly urge the New York State Legislature to maintain New York State’s current prohibition.

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