Campaign to Legalize Surrogacy in New York Heats Up with Competing Bills

Governor Andrew Cuomo of New York is once again attempting to legalize commercial surrogacy in the state, which is still just one of three states in the country to forbid the practice.

"This antiquated law is repugnant to our values and we must repeal it once and for all and enact the nation's strongest protections for surrogates and parents choosing to take part in the surrogacy process," Governor Cuomo said in a statement in announcing a broader effort called Love Makes a Family. "This year we must pass gestational surrogacy and expedite the second parent adoption process to complete marriage and family equality."

The Governor's announcement included endorsements from some big names who have used surrogacy to complete their families, including "Watch What Happens Live" host Andy Cohen. "I came to New York years ago so I could live my life openly, but I had to leave New York to start my family," Cohen said in the statement. "New York has long been a leader in advancing the interests of women and the LGBTQ community, and it's time to keep that tradition alive."

The effort stalled last year after several Democrats argued the bill, advanced by State Senator Brad Hoylman — a gay dad through surrogacy — didn't go far enough to protect women who serve as surrogates. Senator Liz Krueger, one of the opponents of that bill who helped kill it last year, introduced her own competing version this year.

"Surrogacy can be a satisfying and positive experience, but it is also a complex physical, emotional, and legal process with the potential for serious negative outcomes," Krueger said in a statement. "That is why it is vital to have protections in place for everyone involved, especially low-income people. Previous legislative proposals have not fully addressed concerns that I and many advocates have."

Krueger's bill differs from Hoylman's in some key ways. Her bill would legalize and regulate both traditional and gestational surrogacy (Read about the difference here) as well as known donor arrangements. But it also includes a controversial 8-day "waiting period" during which the person acting as surrogate and the intended parents would share in the decision making. After the waiting period, the surrogate would need to voluntarily submit a notarized declaration renouncing their parental rights to a court. Additionally, the bill would build in stricter requirements to serve as a surrogate. Women must have previously delivered one live birth without complications, have no more than 3 children, be free of medical and psychological preexisting conditions, and can't be over the age of 35 at the time of conception.

We caught up with Sam Hyde, President of Circle Surrogacy, for his impressions of the two bills. He noted that while he had "some minor issues" with Senator Hoylman's bills, it was worth considering nonetheless in order to finally legalize the process in the state. "I think the regulation around limitation of international parent's ability to do surrogacy in NY is unfortunate, as is the requirement that surrogacy agencies, escrow management, and legal services be separate," he said. "There are full-service agencies that have been providing these services together successfully for decades."

By comparison, however, he had little good to say about Senator Krueger's bill, which, if enacted, would legalize surrogacy in New York, but also make it the most restrictive state in the country to do so. "A bill that complicates the legal proceedings for the parents and potentially allows them to lose their genetic child is truly unfortunate," Hyde said, referring to the bill's 8-day waiting period. He also took issue with the bills underlying assumptions about why women decide to serve as a surrogate. The added restrictions imply that "they're entering into these arrangements without full forethought and consideration of the intended parents that they're partnering with," he said. "The cynical read is that this is just an attempt to submarine the entire effort."

We'll be following both bills closely throughout the legislative season this year, so be sure to check back for regular updates.

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