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New York’s commercial surrogacy legalization will exploit women, critics say

Pregnant teen Credit Thanatip S Shutterstock CNA Thanatip S/Shutterstock.

New York state this week legalized commercial surrogacy, prompting concerns about the exploitation of women and commodification of children.

The law, passed during April 2020, took effect Feb. 15. Prior to the law’s implementation, New York was one of only a few states including Louisiana, Nebraska and Michigan that did not allow commercial surrogacy. 

The law allows New Yorkers to pay a woman to carry to term a child conceived through in-vitro fertilization, also known as gestational surrogacy. It explicitly excludes traditional surrogacy, in which a surrogate mother uses her own eggs, and therefore is related biologically to the child.

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Gestational surrogacy routinely costs between $100,000 and $150,000, the AP reported. 

The New York Catholic Conference, which speaks on behalf of the bishops of the state, called the bill “a dangerous policy that will lead to the exploitation of poor, vulnerable women, and has few safeguards for children.”

“We will likely not know the medical, psychological, legal and ethical ramifications of this new policy for years to come. For certain, commercial surrogacy deliberately and completely separates children from at least one of their biological parents,” Kathleen Gallagher, Director of Pro-Life Activities for the New York State Catholic Conference, said in an email to CNA.

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“It treats those children as made-to-order merchandise rather than priceless gifts from a loving God. It denigrates and exploits women, reducing them to nothing more than ‘hosts.’ It offends the dignity of women, children, family, and human reproduction.”

Among the new law’s provisions, it requires prospective parents seeking a gestational surrogate to pay for “comprehensive health insurance and independent legal counsel of [the surrogate mother’s] choosing.”

However, the legislation explicitly denies any and all rights to babies in utero, stating that they may not be viewed as a ‘child' under the laws of New York, with the presumption that they must instead be viewed as manufactured products or disposable goods. As a result, the law allows surrogate mothers to abort the children they are carrying. 

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Gallagher has noted that many other nations worldwide, including almost all European Union members as well as Nepal, Thailand and Cambodia, have outlawed commercial surrogacy “because of the exploitation of women and commodification of children that inevitably results from the profit-driven surrogacy industry.”

India, once the capital of “fertility tourism,” passed a bill banning surrogacy in 2018, amid increasing concern and outcry over the exploitation of poor women who were being used for paid surrogacy, sometimes multiple times over, and usually by foreigners.

Gallagher also criticized the legislature’s move to include the lifting of the ban in a large budget bill in the midst of a pandemic. 

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“The Church needs to continue to educate our Catholic faithful about why we take the position we do: surrogacy is immoral because it replaces the natural act of unitive and procreative love, within marriage, to achieve pregnancy.”

“Our Church loves and empathizes with infertile couples, and supports medical interventions which assist the natural act of unitive/procreative love to achieve pregnancy, such as fertility drugs, surgery to overcome blocked tubes and other restorative reproductive medical measures.”

The Catechism of the Catholic Church paragraph 2376 teaches that: “Techniques that entail the dissociation of husband and wife, by the intrusion of a person other than the couple (donation of sperm or ovum, surrogate uterus), are gravely immoral.”

“These techniques (heterologous artificial insemination and fertilization) infringe the child's right to be born of a father and mother known to him and bound to each other by marriage. They betray the spouses' ‘right to become a father and a mother only through each other,’” the Catechism continues. 

Governor Andrew Cuomo, a Catholic, was a proponent of the new New York surrogacy law, saying the current laws against surrogacy were harmful to same-sex couples wishing to have children. 

"For far too long, LGBTQ+ New Yorkers and New Yorkers struggling with fertility were denied the opportunity to start a family because of arbitrary and archaic laws, and I couldn't be prouder of the way New York came together to say we won't stand for this any longer," Cuomo said Feb. 15. 

The New York bill also faced opposition from prominent feminist speaker, author, and activist Gloria Steinem, who expressed concern in an open letter about the state legislating a “profit-driven reproductive surrogacy industry.”

"Under this bill, women in economic need become commercialized vessels for rent, and the fetuses they carry become the property of others," Steinem wrote in 2019. 

“The bill ignores the socio-economic and racial inequalities of the reproductive commercial surrogacy industry, and puts disenfranchised women at the financial and emotional mercy of wealthier and more privileged individuals,” she continued.


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