Jikky ThankachanArticle Solicitation Editor

Paying a woman to carry a child that is not hers is currently legal in every state except New York, Louisiana and Michigan. Those who support this practice, called commercial gestational surrogacy, say that it is an essential way of aiding infertile couples and same sex couples in beginning families of their own. Those who oppose commercial surrogacy say that it is essentially women selling their bodies, and is degrading. Phyllis Chesler, a feminist activist called commercial surrogacy “baby-selling, baby-buying and slavery.”

Until now, those who opposed commercial surrogacy succeeded in keeping paid surrogacy contracts illegal in New York. New York faced new legislation this year that hopeed to change this policy. Governor Andrew Cuomo publicly supported a bill called the Child Parent Security Act that seeks to lift the ban on commercial surrogacy. Governor Cuomo went beyond merely making public statements on the bill by including the bill in his state budget proposal. Unfortunately, the New York State Assembly did not bring the Child-Parent Security Act to a vote in its 2019 session.

A case by the name of Baby M is why New York has such a tumultuous relationship with commercial surrogacy. In 1985, Mary Beth Whitehead, a poor woman, entered into an agreement with William Stern to be inseminated by him and carry his child for $10,000. William Stern’s wife suffered from multiple sclerosis and was unable to carry Stern’s child.

When Baby M was born, Whitehead reneged on her agreement with Stern and made the decision to return the $10,000 to Stern so she could keep Baby M.  Consequently, a legal battle ensued and Baby M was given to the Sterns. In the 1988 ruling by the New Jersey Supreme Court, the Court noted that paying women to carry children was not only illegal, but also degrading. In 2018, New Jersey reversed its position by passing supportive gestational surrogacy legislation.

The case of Baby M then forced all surrogacies in America to be gestational, meaning that a donor egg from the woman who will raise the child. This way, since the carrier’s DNA will not be involved like it was in the Baby M case, legal issues are avoided.

Babies born in the U.S. via surrogate have grown from 738 in 2004 to 2,807 in 2015. Although commercial surrogacy is flourishing in the U.S., it is facing backlash all over the world. Europe considers it illegal, India recently banned it due to its exploitative nature, and Cambodia considers it to be human trafficking. In the U.S., surrogacy tends to make the news when celebrities like Kim Kardashian employ it. The cost for a surrogate ranges from $80,000 to $250,000, an exorbitant price that it seems like only a Kardashian could pay. This price includes attorney fees, medical care, and a minimum pay out of $35,000 for the surrogate.

Countries like India and Cambodia are cracking down on commercial surrogacy because women in these countries are more likely to be taken advantage of, especially poor women. Phyllis Chesler has said “At the very least, it’s exploitation of poor women who are economically desperate enough to do this life-changing service,” she said. “It’s reproductive prostitution with many harms.”

Although these concerns of exploitation are valid, New York and company should consider moving into the twenty-first century with regard to surrogacy laws. It’s neighboring states support commercial surrogacy, which means that residents of New York have to incur additional, avoidable cost to find a surrogate outside of the state. Having to undergo the surrogacy process in another state not only means more cost for those who live in New York, but missed doctors visits, and potentially missing the birth of their children.

As a solution for the exploitation that may occur if commercial surrogacy was legalized in New York, the state should create an entity that regulates it, either within a current state agency or by creating a new task force. Just as contracts will be not be enforced if they contain unconscionable terms, neither should surrogacy agreements. Allowing regulation by a state entity of surrogacy agreements would allow those who struggle with infertility or same sex limitations to start their own families, while also preserving the best interests and rights of the women who offer themselves as surrogate.