Has New York Put Women Up for Sale?
Why New Yorkers should care about the legalization of commercial surrogacy.
Ukraine, the poorest country in Europe, is one of the only nations on that continent that allows reproductive commercial surrogacy. It hosts over fifty reproductive clinics and surrogacy agencies, some with dubious reputations, matching impoverished Ukrainian women, desperate to sell their eggs and uteri, to affluent foreigners.
The COVID-19 pandemic is shining a light on the horrors of commercial surrogacy. With closed borders, Ukrainian officials predict that women will give birth to up to a thousand babies who will linger in hotels and hospitals, alone and stateless, until travel restrictions lift. The birth mothers are forbidden to nurse them, cradle them or temporarily take them home. Babies born with medical issues are often abandoned.
As these alarm bells rang across the Atlantic, Governor Andrew Cuomo, in the late hours of April 2, legalized commercial surrogacy in New York, sidestepping legislative processes that controversial bills require. The provision was buried in a 400-page budget bill as his shell-shocked state, then the global epicenter of COVID-19, awaited immediate relief.
A shocking decision given reports of deaths of surrogate mothers, like Michelle Reaves, and the perturbing increase of maternal mortality, especially of Black women, in New York.
Reproductive surrogacy is a procedure whereby a woman carries a pregnancy for people who can’t or won’t conceive but want genetically related offspring.
Altruistic surrogacy, already legal in New York, allows an acquaintance or family member to carry a pregnancy for them. The money exchanged covers the woman’s medical costs or lost income through a private arrangement between the parties.
The commercialization of reproductive surrogacy, which Cuomo’s law sanctions, adds into the mix predatory businesses vested in finding “wombs for hire.” Not just any wombs, but those of women so destitute or socio-economically vulnerable that companies match them to buyers who can spare at least $100,000 for the process. The typical fee offered to the surrogate mother is $30,000.
The U.S.’s history of selling human beings offers a somber backdrop to commercial surrogacy. Black women were of distinct worth on the auction block, offering acute value to the institutions of slavery and medicine, fueling property wealth, research and economic growth. In the early to mid-1700s, a slave market operated where Wall Street now stands. Cuomo’s commercial surrogacy law is reminiscent of that dark legacy.
Suffering from infertility can be a personal tragedy. Without diminishing empathy for the visceral yearning to bear a child, however, creating a legal right to purchase or rent human organs is reprehensible. The state prohibits the sale of kidneys or parts of one’s liver, so why are women’s reproductive organs an exception?
Cuomo’s father wondered as well. In 1988, Governor Mario Cuomo concluded that public policy must prohibit this commodification of women’s bodies and the children they bear as a violation of dignity. His son, tragically, rejected this human rights-based understanding.
Three points consistently emerge when I speak to women who have braved commercial surrogacy.
First, is their desperate need for money: to feed their children, to pay bills, to survive. Second, is their tender willingness to offer the “gift of life.” What better way, they assume, than to receive some much-needed money in the process? Third, is a vow to ensure no other woman endures the ordeal they regret.
“Surrogate mothers are silenced, which is why the public knows nothing about our trauma,” says Toni Bare, a Black woman who contracted with a Caucasian couple in 2016 and gave birth to white twins for a surrogacy fee of $13,000. Only one survived. “While nursing this blued-eyed, red-haired baby, keeping her alive, they took her away. I haven’t recovered from that. There is no regulation that can prevent that pain and suffering we face as surrogates. You can die from it and it won’t get you out of poverty.”
Evidence of the harms of commercial surrogacy were presented to the New York Governor and state legislators, but the testimonies of surrogacy survivors, medical experts and women’s rights advocates were ignored. New Yorkers should have learned, through legislative hearings, about the gruesome realities of commercial surrogacy and the human costs its legalization will unleash.
Cuomo’s law renders women vessels for sale. There is no limit to the number of pregnancies she can bear through commercial surrogacy, as long as she is at least 21 years old. She must undergo a medical evaluation prior to signing the contract. She is prohibited from using her own eggs. No state registry is in place for surrogate mothers or egg donors to track the outcomes of their health after such procedures.
Like cattle destined for consumption, New York State’s Health Commissioner must give a stamp of approval on her physical condition, but the government, medical institutions, and surrogacy agencies are not required to inform her of the dangers of commercial surrogacy, including morbidity.
Conversely, the preconditions imposed on contracting parents are minimal, requiring neither criminal background checks nor financial or psychological evaluations. The law also compels them to use attorneys registered to practice in New York, which would explain its bar associations’ enthusiastic support of commercial surrogacy.
A woman’s right to exercise choice and agency over her body rests on conditions of equality, not on the desires of the purchasing class. The informed consent a surrogate mother gives through a commercial surrogacy contract is as valid as the consent provided when signing a discriminatory subprime mortgage. Out of desperation, one succumbs to systems that abuse vulnerabilities and profit from exploitation.
When almost all European countries plus China, India, Cambodia and others prohibit surrogacy, this law will make New York a global destination for the business, with the attendant high risks of exploitation, reproductive tourism and trafficking. The targets will be New York’s most marginalized women: of color, in financial distress or in situations of violence, coerced to sign a contract. The dire and long-lasting ramifications of COVID-19 will exponentially increase this class of women.
New York congratulates itself in promoting women’s rights but throwing crumbs at advocates who beg policy makers to address maternal mortality, equal pay, sexual harassment or representation in government is a bare minimum. When the state decides whose human rights are protected or not, it builds a system of apartheid, destroying any chance at equality.
The surrogate survivors begged us to stop New York from passing this law. We failed them.
We failed the memory of surrogate mothers, whose names the mainstream media rarely mentions and who perished while birthing others’ babies.
We failed to curtail a cultural narrative that measures women’s worth, not by her humanity, but by her sexual and reproductive assets made available to well-heeled consumers.
We failed the memories of enslaved women, offered as gifts to plantation owners’ wives, on wedding days and Christmas, who prayed for a future without the purchaser’s option.
We call on New York’s legislators and Governor to imagine such a future. Their responsibility now is to rescind the legalization of reproductive commercial surrogacy and to understand that no true democracy puts women up for sale.
