Thursday, June 4, 2020
by Sital Kalantry, Clinical Professor of Law, Cornell Law School and Darrell White, 2020 J.D., Cornell Law School
Until recently, New York state’s anti-surrogacy statute passed in 1992 was one of the most restrictive surrogacy laws in the United States. Over the last two decades, states have moved to modernize their surrogacy laws, but New York continued to hold out. Radical feminists and religious groups came together to resist efforts by LGBTQI+ and fertility organizations to legalize surrogacy. After the bill to legalize surrogacy, known as the Child-Parent Security Act (CPSA), failed in the state legislature last year, Governor Cuomo used his executive power to include the CPSA in the state budget. The budget was passed in April 2020.
New York initially prohibited compensated surrogacy after the nationally televised Baby M case from its neighboring state, New Jersey. A traditional surrogate sued the intended father to nullify the surrogacy contract and the New Jersey Supreme Court ruled that surrogacy contracts were against public policy. In 1988, the New York Task Force on Life and the Law, argued that New York should ban surrogacy, because it could disrupt traditional relationships and because the long-term effects of the fertility technology was unknown. Thereafter, the New York state legislature passed a statute that imposed fines and criminal sanctions on those who facilitated any type of compensated surrogacy arrangement.
The battle to legalize surrogacy in New York started almost a decade ago. The CPSA was first introduced in the New York State Assembly in 2012 and in the New York State Senate in 2017. While the CPSA was being considered in 2017, the Cornell International Human Rights Clinic published a report pointing out that the stringent anti-surrogacy law in New York had become an outlier in the United States and that many of the societal and technological concerns that prompted the law were no longer valid.
The CPSA remained stalled in the judiciary committee of the legislature for many years. During the 2019 session of the state legislature, the CPSA made it farther than ever before; it passed the New York State Senate. However, it was not introduced in the Assembly for vote in large part because radical feminists and Catholic groups objected. They argued that if New York were to legalize surrogacy, poor and immigrant women would be trafficked to and exploited in New York. Other concerns raised related to the safety of in-vitro fertilization and health of surrogates during pregnancy and birth.
In a literature review published in March 2020 by researchers at Cornell Law School and Weill Cornell Medical School, the authors concluded that in the United States, surrogacy “[i]s a safe process with improving outcomes” because (among other things) of medical norms that already include “[m]eticulous psychosocial and medical screening . . . . ” In regard to the psychological health of surrogates, the report concluded that the published studies in “Western medical systems overwhelmingly show that surrogate[s] . . . and their families have good psychological outcomes . . . and feel positively about the experience.”
Eager to ensure passage of the CPSA, Governor Cuomo included the law in the state budget for the fiscal year 2021. Although it may seem that the inclusion of a surrogacy bill in a budget would be beyond the outer limits of executive power, that is not the case in New York. New York’s constitution and case law permit the governor to include substantive non-fiscal items in the budget. During this legislative session, there was little resistance to the budget and CPSA as the COVID-19 crisis loomed over the country.
Twenty-two states in the United States currently have no statute that addresses surrogacy. The trend among the states in the U.S. that have adopted surrogacy laws is to legalize surrogacy, not prohibit it. Since 2000, sixteen states (including New York) and the District of Columbia have enacted statutes that explicitly permit compensated gestational surrogacy. Only four states have taken a prohibitive approach since 2000 and two of those states permit uncompensated gestational surrogacy. New York’s change leaves Michigan as the only state that criminalizes compensated gestational surrogacy in the United States.
New York’s new pro-surrogacy law is one of the most protective in the United States in terms of the rights it gives to surrogate. A section of the law, known as the “surrogate’s bill of rights” specifically enumerates the rights of surrogates in regards to: health and welfare decisions, legal counsel, health insurance and medical costs, counseling, life insurance, and termination of the surrogacy contract. The new law also resolves how courts should handle a judgment of parentage and adoption, the status of a child of assisted reproduction, the necessary features of a surrogacy agreement, and how the state plans to regulate surrogacy programs. This change in New York law, which becomes effective in February 2021, is in line with the growing trend towards recognizing surrogacy in the United States.