Gestational Surrogacy

Published on February 28th, 2019

Re: A.1071-A Paulin
In relation to Gestational Surrogacy Agreements

Memorandum of Opposition

The above-referenced bill would undo New York’s longstanding prohibition of compensated surrogate parenting contracts. It would thereby encourage the buying and selling of children and the outsourcing of motherhood. The New York State Catholic Conference opposes this bill.

A.1071-A would legalize commercial “gestational surrogacy,” 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 (or “gestational carrier,” as this bill calls her).

Currently, 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.

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. In the report, NYS DOH Commissioner Howard Zucker called surrogacy a “difficult” and “controversial” issue, and conceded 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.

Seven members of the NYS Task Force signed a minority report (which begins on page 93 of the Task Force report) recommending that New York’s ban be maintained. We concur with the minority and their well-documented report, and urge that you read it in full. We summarize here the primary harms of surrogacy as detailed in that minority report.

It 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.

It 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 arrangement compels an unnatural and unhealthy act: telling a mother not to bond with the baby she bears in her womb. Moreover, it can result in confusion, pain, loss and abandonment felt by donor-conceived children, who may never know their true biological origins or experience the natural parent-child bond. The personal testimonies found at www.anonymousus.org are enlightening in this regard.

It exploits women, particularly poor women. Reproductive commerce is human exploitation. Commercialization denigrates the dignity of women by degrading pregnancy to a service. 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 doused 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 mandated abortion or “fetal reduction” if too many embryos grow in her uterus.

The European Parliament has asked its member states “to acknowledge the serious problem of surrogacy, which constitutes an exploitation of the female body and her reproductive organs.”

New York State law prohibits donating an organ for profit; why is renting a womb and purchasing the “reproductive product” any different? Those who live in dire poverty do not have genuine “freedom of choice” in making a decision to carry another’s child.

Insufficient evidence of safety. The minority report of the Task Force 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 means you don’t take the risks.

As outlined in the December 2017 Minority Report of the Task Force, the legalization of gestational surrogacy contracts will foster grave violations of human rights and human dignity. We do not believe it to be in the best interests of children, families, or society, and we strongly urge you to oppose this legislation.

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