The law was condemned by the state’s Catholic leaders.
“The action by the legislature and governor to legalize monetary contracts for surrogate motherhood stands in stark contrast to most other democratic nations across the globe,” Kathleen Gallagher, director of pro-life activities for the New York State Catholic Conference said in a statement Friday.
“[Other countries] have outlawed the practice because of the exploitation of women and commodification of children that inevitably results from the profit-driven surrogacy industry,” she said.
New York had been one of only four states where commercial surrogacy had been expressly prohibited by law, and contracts for non-commercial surrogacy were legally unenforceable.
The law includes some robust protections for surrogate mothers who carry and gestate babies for nine months on behalf of their intending parent clients, but surrogacy advocates balked at those measures, calling them “complicating factors”. A surrogate must be at least 21 and the intended parents — those who will raise the child — must pay for legal counsel for their surrogate, plus for a surrogate’s health and life insurance during the pregnancy and a year after their surrogate gives birth.
Melissa Brisman, a reproductive lawyer in New Jersey who runs one of the largest gestational surrogacy agencies in the United States said “It’s a great step forward, but there are some complicating factors”. Surrogacy already comes with an eye-popping price tag of $80,000 to $250,000, which includes a minimum compensation of $35,000 for the surrogate, Brisman said. Adding a year’s worth of health and life insurance afterward would raise that price, she said.
New York’s long-held resistance stems from a tumultuous surrogacy battle in neighboring New Jersey, known as the Baby M case. In 1985, a woman who was struggling financially, Mary Beth Whitehead, agreed to be a surrogate and be inseminated with sperm from William Stern, a man whose wife had multiple sclerosis, for $10,000.
When the girl, referred to as Baby M in court papers, was born, Whitehead changed her mind and decided she wanted to give back the money and keep the baby — half of whose DNA was hers. A protracted legal battle followed and the child was eventually given to the Sterns, with the New Jersey Supreme Court ruling in 1988 that paying women to bear children was illegal and “potentially degrading.”
Since then, nearly all surrogacies in America have been gestational, meaning they use a donor egg — either from the woman who will raise the child or from an outside donor — rather than the carrier’s egg (called traditional surrogacy), to avoid a similar legal quagmire.
