New York Paid Surrogacy and An India Connection

By Sital Kalantry

Editors' Note:  This piece was originally published in the NY Daily News

The New York State Legislature banned surrogacy in 1992. The only other state that similarly criminalizes and holds all surrogacy contracts unenforceable is Michigan. New York prohibited surrogacy on the heels of a nationwide debate that ensued after a surrogate in New Jersey, Mary Beth Whitehead, sought to keep custody of her biological child.

Almost exactly a year ago today, the New Jersey legislature legalized gestational surrogacy, which is to say cases in which the pregnant woman is not also the genetic mother. Yet New York still lags behind in recognizing modern families.

Last week, I testified in Albany before the New York State Senate Judiciary Committee in favor of a bill that would legalize and regulate compensated surrogacy in New York State. In speaking to state legislative representatives, I learned that one reason some worry about allowing surrogacy is because they think women (particularly poor and minority women) will be exploited.

This is exactly the argument made by some women’s rights advocates. Catholic groups argue that because surrogates face abusive conditions in Thailand, Cambodia, and other developing countries, they will also be exploited in the United States.

The problem with these arguments is that they conflate an ideological objection to surrogacy with a prediction that surrogates in New York will be abused. Those who shroud their objections to surrogacy by pointing to the abusive conditions in other countries object to surrogacy on religious grounds or because they think women’s gestational care should never be bought and sold.

Some Catholics believe that the medical technology used in surrogacy — in vitro fertilization — is problematic because embryos could be killed in the process. Some women’s rights advocates, approaching surrogacy from a view of the world similar to “The Handmaid’s Tale,” argue that we live in a sexist world and women who operate in this world, particularly surrogates, inevitably face horrendous conditions and are dehumanized.

This top-down feminism appears in debates about surrogacy in India as well. Marxists oppose surrogacy in India because they oppose the buying and purchasing of labor more generally. These viewpoints are married to create the exact same arguments being made today in New York: that women will be exploited by surrogacy.

But like the anti-surrogacy lobby in New York, many opponents of legal surrogacy in India would still oppose it even if every surrogate was paid her a million dollars and put up in the Ritz-Carlton by intended parents.

I too worry about the unfair conditions for surrogates in India. Some are forced to live in surrogacy homes; they have no life insurance, no health insurance beyond the pregnancy, and no guarantee of payment. But unlike in India, the New York bill would provide state-of-the-art protections for surrogates in New York: legal representation, life insurance and health insurance all paid for by the intended parents. Women retain the right to terminate the contract before they become pregnant and also to terminate their pregnancy.

Even in the numerous other states in the U.S. where there is no legislation, industry actors have adopted many surrogate-protective guidelines. Surrogates in the United States additionally have the ability to seek damages from doctors, lawyers or the intended parents if they have been harmed, unlike the women who are surrogates in India.

I encourage New Yorkers to distinguish ideological arguments from facts and not to be persuaded by arguments that inappropriately refer to other countries. No one can guarantee that every surrogate will feel she was treated fairly, but the proposed New York law gives surrogates a number of very important protections and rights. Legalizing surrogacy would allow for many people in New York to fulfill their dream of becoming parents.