As part of Governor Cuomo's Executive Budget 2020-21 proposal released on January 21, 2020, the governor has submitted a proposal to legalize commercial surrogacy contracts in New York state (the "Cuomo Proposal"). Below are some of its many major shortcomings.
Nothing in the Cuomo Proposal would preclude a woman from serving as a surrogate, even if she were under extreme duress and profoundly vulnerable to coercion. She might be a young mother who is homeless, or on the brink of homelessness. She might be a woman who depends on welfare—or begging in the street—to get by. She might be an undocumented woman who is unable to find employment of any kind, and who speaks little or no English, and who is terrified that she and her children could be deported at any time. She might be an older woman—in her fifties or sixties—who has no other means of securing money to live on. She might be a woman under the control of an abusive intimate partner or a pimp or a surrogacy trafficker. Nothing in the Cuomo Proposal protects women in such circumstances from entering into surrogacy arrangements, even when they are compelled to enter into them as a matter of survival, and have no ability to insist on the terms of the surrogacy contract being fair or reasonable.
Although a would-be surrogate must have “completed a medical evaluation,” nothing in the Cuomo Proposal requires that she be disqualified to serve as a surrogate, even if the evaluation uncovers one or more of the conditions listed above. This “medical evaluation” requirement can be fully met when administered by a non-specific “health care practitioner,” who need not possess any expertise in fertility medicine, or psychological evaluations, or assessments of mental aptitude.
Overwhelmingly, in practice, women signing on to be surrogates are young mothers with small children to care for who are experiencing extreme financial stress.Overwhelmingly, in practice, women signing on to be surrogates also have no more than a high school education—if that—and are struggling to find employment sufficient to pay the bills. Often, in practice, surrogates are also single parents, struggling to provide for their children on their own.
The Cuomo Proposal disregards the strong recommendation of the American Society for Reproductive Medicine (ASRM) that intended parents be required to undergo extensive psychological and physical screening, and that they be subject to eligibility requirements. Although the ASRM has established “absolute criteria for rejection of [a person’s]eligibility,” to be an intended parent, nothing in the Cuomo Proposal disqualifies a person from being an intended parent who fits within these criteria, including: an abnormal psychological evaluation as determined by a qualified mental health professional; unresolved or untreated addiction; child abuse; sexual or physical abuse; unresolved or untreated major depression; bi-polar disorder; psychosis; significant anxiety disorder or personality disorder; or current marital or relationship instability.
Since, under the Cuomo Proposal, there is no requirement that an intended parent be a US citizen, or even a permanent legal resident, people from around the world where commercial surrogacy is illegal—for example, all of western Europe, China, Japan, and India--can be expected to come to New York to purchase surrogate children and take them back home, with the added bonus that these children will automatically have US citizenship. Although at least one intended parent is required to be an “habitual legal resident,” one can assume that this lesser residency requirement can be easily satisfied by a wealthy individual who visits the USA with some frequency. While the exact size of the reproductive tourist population is unknown, anecdotal evidence places it in the hundreds of thousands to several millions yearly. The increase in international demand should the Cuomo Proposal be enacted can only be met by the surrogacy industry luring an ever-increasing number of women in New York to engage in risky surrogacy pregnancies.
The ASRM condemns the use of a surrogate unless “a true medical condition precludes the intended parent from carrying a pregnancy or would pose a significant risk of death or harm to the woman or the fetus,” and advises that “[t]he indication must be clearly documented in the patient's medical records.”
But we know that an increasing number of people are resorting to commercial surrogacy because they prefer not to be inconvenienced themselves and can afford others to undertake the risks and burdens of pregnancy instead. Doctors in the US report seeing an increase in the number of clients avoiding pregnancy or time off work by paying someone else to carry their baby – with no medical need to do so.
San Diego-based fertility specialist Dr Lori Arnold estimates that up to 20% of the clients she sees in her practice each year are there for this type of “social surrogacy.” She reports that, “[t]hese are career women, where it just doesn’t fit into their schedule but they want to have a child.” She says she's worked with a socialite "who didn't want to get fat," a runner who had an upcoming marathon, and a fellow MD who, she says, "couldn't really afford to be pregnant—some women work right up to the moment they deliver, but others can be bedridden for several months."
But the Cuomo Proposal disregards the ASRM guidelines, as well as the latest recommendations set forth in the Committee Opinion developed by the American College of Obstetricians and Gynecologists’ Committee on Ethics, which states:
“Because of the ethical, legal, and psychosocial complexities and potential medical risks to the gestational carrier, it is recommended that the use of gestational surrogacy be restricted to situations in which carrying a pregnancy is biologically impossible or medically contraindicated for the intended parent(s).”
The Cuomo Proposal requires no showing of medical need on the part of any intended parent, and instead permit considerations of convenience and vanity on the part of an intended parent to override the health and safety of vulnerable women and children.
Medical ethics, as expressed in the principle “First, do no harm,” ought to prohibit doctors—and government representatives—from facilitating entirely elective, medically risky procedures that fail to benefit in any way the health of the young healthy women involved, but instead subject them to grave risk of harm, sometimes leading to their death.
But disregarding this most fundamental ethical tenet, the Cuomo Proposal would permit commercial surrogacy transactions that pose well-known and especially grave health risks to both surrogate women and children, including the following:
The Cuomo Proposal requires that surrogacy pregnancies use donor-eggs, even though the medical literature conclusively demonstrates that egg-donor pregnancies pose dramatically greater health risks to women than the risks posed by traditional pregnancies and standard IVF pregnancies.
Although the health risks of pregnancy would be dramatically reduced for both surrogates and surrogate offspring if a surrogate were allowed to use her own egg(s) in a surrogacy pregnancy, this is expressly forbidden in the Cuomo Proposal. By requiring instead the use of donor eggs in surrogate pregnancies, both surrogate women and surrogate offspring face much greater risk of harm. Egg-donor pregnancies, as compared to both traditional pregnancies and standard IVF pregnancies, are at higher risk of bleeding complications in the first trimester; preterm labor; preeclampsia; protracted labor requiring Caesarean section delivery; and post-partum hemorrhaging. There is a 3-fold increased incidence of hypertension complications in egg donor pregnancies compared with standard IVF pregnancies.
Notwithstanding the universally recognized risks associated with transferring multiple embryos to a woman to carry, it is estimated that 85% of surrogacy arrangements in the USA involve transfers of multiple embryos to the surrogate for her to carry.
Although the Ethics Committee of the ASRM encourages single-embryo transfers “in an effort to limit the risks of multiple pregnancy for the carrier,” nothing in Cuomo’s Proposal limits the number of embryos that can be implanted in a surrogate’s uterus. By permitting the practice of multi-fetal transfers, and catering to the wishes of intended parents to get “two for the price of one,” the Cuomo Proposal will necessarily result in women carrying multiple fetuses in high risk pregnancies, at greatly increased risk of suffering major pregnancy complications.
In a recent report entitled “Gestational surrogacy: a call for safer practice” appearing in the Fertility Sterility Journal (VOL. 106 NO. 2 / AUGUST 2016), the authors noted that it “is clear that a significant number of [surrogates] and the resulting children are being exposed to the increased risks associated with multiple-gestation pregnancies,” and found that a reduction in the number of embryos transferred is needed in order to reduce the ”greater than 30% preterm delivery rate” of surrogacy pregnancies, and the “42% multiple-birth rate” of donor-egg surrogacies.
The report went on to recognize that it is the duty of fertility doctors “to do our utmost to ensure the medical safety of” surrogates and resulting children, and that “one of the most effective means for achieving this goal is to minimize the number of multiple gestation pregnancies by maximizing the use of elective single-embryo transfer.”
The report noted, however, that single embryo transfers are performed in only 15% of all surrogacy transfers, and that two-embryo transfers were much more common in surrogacy arrangements than in standard IVF arrangements, “leading directly to the multiple-gestation and preterm risks documented in [the] report.”
The report noted that clinics and women considering surrogacy often assume that a woman who has already experienced a traditional pregnancy free of complications is less likely to suffer complications in a surrogacy pregnancy, but found that, regardless, where multiple embryos were transferred in surrogacy arrangements:
the risk of premature delivery was many times higher for multiples than for singletons” in those surrogacy pregnancies, and “it is a well-documented fact that multiple-gestation pregnancies are associated with a significantly higher risk of hyperemesis, gestational hypertension, gestational diabetes, anemia, preterm labor, hemorrhage, cesarean delivery, and cesarean hysterectomy than singleton pregnancies.
The report acknowledges “that limiting the number of embryos transferred [in a surrogacy arrangement] increases the out-of-pocket expenses for the intended parents who desire more than one child,” and that since a single surrogacy transaction can be costly, a ‘‘two for the price of one’’ arrangement “may be appealing to intended parents.” But the report went on to state that “physicians…have a moral, professional, and ethical obligation to ensure the safety of our patients [and to] that end, we must support and promote policies to limit the number of embryos transferred….”
Pursuant to the Cuomo Proposal, health insurance provided by or for a would-be surrogate is only required to extend for twelve weeks after the end of a pregnancy (unless a medical complication related to the pregnancy is diagnosed during that period, in which case the term of the health insurance is extended to a total of six months). But this health insurance coverage is entirely inadequate, where many major pregnancy-related complications first arise beyond this period of time, or extend well beyond this time period.
While many pregnancy-related medical complications appear to resolve at delivery or shortly thereafter, women who develop complications--especially in high-risk pregnancies--are also known to be at increased risk of developing of long-term medical complications as well, which require multiple medical interventions over time to effectively treat. However, the Cuomo Proposal requires no health insurance coverage of a surrogate that would extend over time to cover longer-term health issues, even where these issues also may have directly resulted from her surrogacy pregnancy.
An extensively-researched report entitled “Long-Term Effects of Pregnancy Complications on Maternal Health: A Review,” published in the Journal of Clinical Medicine in August 2017, documented a “clear association” between various obstetric complications and long-term effects on maternal health, and found that “[w]omen with a history of adverse pregnancy outcomes are at increased risk of cardiovascular and metabolic diseases later in life.”
The report found that women who had preeclampsia in a pregnancy have an increased risk of preeclampsia in subsequent pregnancies, as well as an increased lifetime risk of chronic hypertension, cardiovascular disease, and stroke. Studies have shown that women who had preeclampsia during pregnancy that ended in preterm delivery had, in fact, an eight fold higher risk of death from cardiovascular disease compared with women who did not have preeclampsia and delivered at term. Placental abruption was also found to be a significant risk factor for long-term cardiovascular mortality.
Similarly, the report found that women who experienced gestational diabetes in a pregnancy have a 36–70% risk of developing type 2 DM later in life, depending on risk factors and length of follow-up. The report stressed that [i]t is important for women who had gestational diabetes to have appropriate follow up since, over time, often before patients are diagnosed, DM causes damage to various organs--heart, blood vessels, kidneys, eyes, nerves, etc.” Women previously diagnosed with gestational diabetes are also at increased risk of future metabolic syndrome, a combination of metabolic abnormalities that include hypertension, DM, dyslipidemia, and obesity, all of which increase the risk of cardiovascular disease.
The report concluded that “it is clear that many obstetric complications are associated with increased risk of long-term maternal morbidity, “ and that “to improve women’s health and decrease such risks, both women themselves and the medical team caring for them need to be aware of these risks,” and “multiple interventions” over time may be required to help decrease these risks.
We know that Surrogacy pregnancies are often high-risk, and often result in health complications that prevent a surrogate mother from continuing to work while she is pregnant, and also prevent her from returning to gainful employment for some period of time after her pregnancy has come to an end, as she is attempting to recover. Yet the Cuomo Proposal neither requires any short-term or long-term disability insurance for would-be surrogates, nor any other assistance that would address the needs of a surrogate mother in these circumstances.
It is the norm in commercial surrogacy transactions for a surrogate to rely on referrals made by a surrogate agency or intended parents in order to procure the “independent legal counsel” she is entitled to. As long as that legal counsel’s livelihood or income depends upon commercial surrogacy contracts being successfully arranged and consummated, however, there is an inherent conflict of interest in permitting that lawyer to assume responsibility for ensuring that the interests and well-being of women who would serve as surrogates are given first priority and are being met. The lawyer whose very livelihood depends on referrals made by surrogacy agencies and intended parents cannot, as a practical matter, afford to displease these parties. In such cases, it is questionable whether that lawyer can fulfill his duty to represent the best interests of a would-be surrogate as her “independent counsel.” Nothing in the Cuomo Proposal ensures that the legal counsel retained by a surrogate is in fact “independent.”
It is the norm in commercial surrogacy transactions for a surrogate to rely on referrals made by a surrogate agency or intended parents in seeking out medical providers to oversee her health care needs. But similarly, when the livelihood or earnings of a health practitioner or medical clinic depend upon referrals made by surrogacy agencies and intended parents, they too cannot afford, as a practical matter, to displease these parties, even when these parties’ interests diverge from the best interests of a surrogate. Their income also depends upon commercial surrogacy contracts being successfully arranged and approved, and not on whether they have given the would-be surrogate or egg provider their best care. Given current commercial surrogacy practices in the US--where fertility doctors who know very well the profound health risks involved, still agree to implant multiple embryos into women's wombs in 85% of commercial surrogacy transactions--it is obvious that the health and well-being of surrogate women is more often than not only of secondary importance to them. Nothing in the Cuomo Proposal protects a surrogate from compromised health care provided by health care practitioners with conflicted interests.
The CThe Cuomo Bill completely disregards the role of egg providers in surrogacy arrangements, as well as the health risks faced by them. Egg providers are typically young, healthy women who are incentivized by large payments and frequently undergo repeated egg retrieval cycles. We know that egg providers are at increased risk of sometimes-severe ovarian hyperstimulation syndrome (OHSS) because of the high doses of hormones they are given to maximize the number of eggs they produce in a given cycle. OHSS is associated with abdominal pain, nausea, blood clots, potential surgical repair of the ovaries, and in rare cases, death.
We also know that infection and bleeding may result from the egg retrieval procedure itself, and that repeated hormonal stimulation also exposes women to unknown (because not studied) long-term risk of psychological trauma, infertility, and hormonally related cancers. But while the Cuomo Proposal, if passed, will dramatically increase the demand for donor eggs, thus putting many more young egg-providers at risk, his Proposal fails to extend to them anything like a “Bill of Rights”—or any protection at all.
We have learned that a number of American women have died from complications directly related to their surrogacy pregnancies. But although we know that tens of thousands of American women are now serving as surrogates in high-risk pregnancies, we have no means of knowing the total number of them who have been or will be harmed or die, in large part because the commercial surrogacy industry has ensured that such information never sees the light of day. Nothing in Cuomo’s Proposal requires these harms and deaths to be reported, thus making it impossible for potential and actual surrogates to understand even the direst of risks that they face.
Unlike the tobacco industry, where only the tobacco companies themselves had a motive to thwart research into the harms of smoking, in the commercial surrogacy realm, that same motive to thwart research exists in many more of the actors involved. University medical schools and hospitals with fertility clinics that enjoy enormous revenues from the very lucrative and rapidly growing surrogacy industry are not inclined to spend any research dollars studying the harms involved in surrogacy (which likely explains why very few studies exist).
Likewise, where surrogacy contracts engage numerous lawyers to represent all of the different parties to the contract and thus create a lucrative and broad-based attorney practice, the American bar association also lacks the motive to understand or address the harms involved in surrogacy.
We all know that it is human nature to avoid killing the goose that lays the golden egg. And of course, the surrogacy agencies themselves have no wish for information regarding the harms related to surrogacy ever to see the light of day. By failing to make data collection and tracking compulsory, we will never make headway in understanding and documenting, with greater accuracy, the harms to women and children involved in surrogacy transactions.
By making data collection and tracking voluntary, and by not requiring data on long-term health complications to be collected and tracked, the magnitude and frequency of health risks to surrogates and egg providers will remain undocumented and unknown, including their mortality rates. In the absence of accessible information regarding these health risks of surrogacy, “fully informed consent” remains an impossibility.
Although the Cuomo Proposal requires intended parents to take immediate custody of any/all children resulting from a surrogacy contract, regardless of their number or condition, and to be responsible for their maintenance and support immediately upon their birth, what happens if/when the intended parents change their minds and decide not to take custody?
Unfortunately, experiences from around the world and in our own country demonstrate that it is not at all uncommon for intended parents to decline to take custody of the children they contracted for, when they find out, for example, that instead of the one child they wanted there are triplets on the way, or that the children they contracted for have physical or mental deficits, or end up being the less-preferred gender.
When intended parents opt out and fail to take custody or to provide maintenance and support, the responsibility for the care of those abandoned children is left to the state's already over-burdened foster care and social service agencies. The state can presumably sue the intended parents for maintenance and support--again and again over the lifetime of the abandoned child if need be. But these suits are expensive and don't often result in an abandoned child--especially a child with physical deficits--finding a loving home and family.
Without criminal or other extremely punitive sanctions being put in place to deter or punish intended parents who decline to take custody of the children they brought into the world, or who fail to maintain and provide for them over their life-time, the Cuomo Proposal, if passed, will leave New York State itself having to take custody of, and maintain and support, potentially hundreds and thousands of these children—often with health deficits—without having adequate resources to do so.
Although the Cuomo Proposal contemplates that the required health insurance covering the surrogate, as well as premiums and deductibles and out-of-pocket expenses related to the pregnancy, are to be paid for by the intended parents, the intended parents are given the option of paying them through reimbursement rather than directly or in advance. However, if something goes awry and the intended parents choose--or are no longer able--to honor the terms of the surrogacy contract, as a practical matter, the very pregnant surrogate with small children at home who may reside thousands of miles away may not be in a position to get to the NYS Supreme Court to contest any breach in a timely manner—if at all—and may face having to pay these expenses herself, or forego important medical care if she cannot pay.
Although the surrogacy agreement must include information disclosing how the intended parent will cover the medical expenses of a surrogate and surrogate children, the Cuomo Proposal doesn’t require that reliable mechanics be put in place that ensure prompt, adequate payment or reimbursement, or a showing that the intended parents have the financial means to pay for all of the expenses that might arise in addition to the cost of the health insurance policy itself.
The maternal mortality rate in the USA--already the worst in the world among
developed countries--is also still steadily rising—the only developed country where this is true—and more than doubled from 1991 to 2014.
Multiple deaths of surrogate women in the USA resulting from pregnancy-related complications have made it into the public domain in recent years. Although we know that tens of thousands of American women are now serving as surrogates in high-risk pregnancies—and that that number is rapidly growing with each passing year--we have no means of knowing the total number who have died or will die, because the commercial surrogacy industry works hard to ensure that such information never sees the light of day, and there is no requirement that this information ever be collected or disclosed. What we do know is that dangerous surrogacy pregnancies will only worsen US maternal mortality rates.
When surrogacy is far more invasive to a woman’s body than donating part of a kidney or liver, and involves more complicated and high-risk procedures and a much longer recovery time, the Cuomo Proposal to legalize commercial surrogacy cannot be reconciled with the state’s ban on commercial organ donation. We know that the procedures involved in donating a kidney or liver are uncomplicated, straightforward, requiring little surgical time and effort, with rapid recover times for donors. Surrogacy pregnancies, on the other hand, involve a at least a month of intense hormone injections, nine months of high-risk pregnancy, and up to a year of recovery time, even when there are no complications involved in the pregnancy.(Briefly compare what is involved with each.)
When extensive data shows minimal health risk to organ donors, but no such data exists regarding risks to surrogates, why would NYS outlaw commercial organ donation and legalize commercial surrogacy?
Because all kidney and liver donors and donees in New York State and throughout the USA are required to be registered in a registry as a condition of being able to donate and receive those organs, we now have decades of comprehensive data on hand and know quite a bit now about the risks involved in organ donation. Overall, studies show the life expectancy for those who have donated a kidney is the same as for similarly matched people who haven't. A 2018 systematic review found that kidney donors did not die any earlier than non-donors, and the review also found no difference in the rates of diabetes, heart disease, high blood pressure, or mental illness. Indeed, multiple studies of American and Japanese donors found that donors reported a higher quality of life than the average non-donor. For kidney donors, there is a 1% lifetime increase in the donor’s own risk of kidney failure, but to put this into perspective, the general population has a 3% risk for kidney failure.
With regard to commercial surrogates, however, absolutely no data has been collected, and no research undertaken, to determine the health risks they face, nor does the proposed Bill require any registry to collect and store such data.
When the lives of most or all of the 121,000 people currently in need of an organ and who are currently on the U.S. government waiting list would be saved if commercial organ donation were legal, but no lives are saved in a commercial surrogacy transactions (although many lives are compromised or put at risk), why would why would NYS outlaw commercial organ donations and legalize commercial surrogacy? When legalizing commercial organ donation would result in massive cost savings to society, and legalizing commercial surrogacy would undoubtedly inflict massive additional costs to society, why would NYS outlaw commercial organ donation and legalize commercial surrogacy?
Proponents for legalizing commercial organ donation argue that individuals should be free to buy or sell their possessions and their labor, and that any prohibitions against selling organs are a paternalistic or moralistic intrusion upon individuals' freedom. They also stress the positive emotional experience that organ donors can have in saving lives, and/or improving the quality of another’s life. Proponents for legalizing commercial surrogacy make essential the same arguments.
But Lawmakers in NY and across the USA prohibit the marketing of organs after concluding that large financial incentives for donating organs will invariably prove irresistible to individuals in extreme poverty, and that such individuals may feel like they have no choice but to agree to sell a kidney, and thus their decision to sell cannot be regarded as truly voluntary. How is the exploitation of poor women tempted by financial incentives offered by commercial surrogacy any different?
Lawmakers in NY and across the country also view government as having a duty to prevent harm to its citizens. This is different than the “coercion by poverty” concern. Instead, the dangers posed by donating an organ are viewed as too great to allow a person to voluntarily undertake them in exchange for money. Even if the would-be seller is willing and eager to sell an organ after being fully informed of the risks, the special value placed on bodily integrity in our society prevents us from permitting action that threatens or undermines that value. Legalizing the selling of organs reduces the seller of the organ to a commodity, an object of commerce. Putting a price on a human being violates his or her intrinsic dignity. How is the commodification of a womb any different in terms of intrinsic dignity than the commodification of a liver or kidney?
Kids conceived thru art are known to have more health deficits. Intended parents are known to want to walk away when they don’t get their perfect baby or their circumstances change. The Cuomo Proposal doesn’t have punitive measures in place to deter parents from walking away, or failing to live up to their duty to maintain and support the children. Because financial solvency isn’t required to be screened for, parents may not in fact have the means to provide that maintenance and support.
As pointed out by David Smolin in his article entitled "The One Hundred Thousand Dollar Baby: The Ideological Roots of a New American Export" and published this past winter (Available at: https://works.bepress.com/david_smolin/20/), there is in reality no substantive difference between a market in things or persons, on the one hand, and a market in the service of providing things or persons, on the other hand. He gives the following, as an example:
Honda or Ford could characterize themselves as service providers and they are in significant part; Honda and Ford certainly are in the business of the “provision of cars” to drivers. Nonetheless, Honda and Ford are also in the business of selling cars. The distinction between the business of the provision of a child, and the business of selling a child, is semantic only. To claim such a distinction is to engage in self-delusion and rationalization in action, as it is a distinction without a difference, except to avoid admitting what is abhorrent: markets in children. Treating children as commodities degrades them as instruments of profit rather than cherishing them as persons worthy of love and care.
A bill that relies on semantic distinctions in order to justify the buying and selling of parental rights and to rationalize the commodification of women and children remains deeply problematic and troublesome.