Though surrogacy is permitted in most states in the United States, it is banned in New York under a 1992 law. That could soon change. The state legislature is now considering a bill, the Child-Parent Security Act, that would permit and regulate surrogacy. On May 29, 2019, Professor Sital Kalantry testified on the topic before the New York State Senate’s Judiciary Committee.
Kalantry, a clinical professor of law, director of the International Human Rights Clinic: Policy Advocacy, and co-director of the Migration and Human Rights Program at Cornell Law School, together with her students, has reviewed surrogacy laws throughout the United States and abroad. In 2017, her International Human Rights Clinic conducted a large comparative study of surrogacy law and policy in India and the United States and also produced a report evaluating the Child-Parent Security Act. The New York Senate’s Judiciary Committee heard testimony from clinic student Rachael Hancock ’18 last year.
In her testimony, Kalantry placed the Act in a national, comparative, and international context, focusing on the rights of women who choose to be surrogates. She addressed, in particular, anti-surrogacy arguments that emphasize the exploitation of surrogates in other countries.
Kalantry pointed out that, even in U.S. states without legislative protection for surrogates, industry actors such as matching entities, doctors, and lawyers have developed their own norms and guidelines to protect surrogates. Additionally, she noted, surrogates in the United States have basic legal protections that those in many other countries lack through common law doctrines.
Rather than endanger surrogates, Kalantry asserted, the Act would in fact improve on common law doctrines, crystalizing best practices and providing increased protection. Among other things, the Act would require intended parents to provide life and health insurance to their surrogates.
Reflecting on the hearing afterward, Kalantry says, “In speaking to state legislative representatives, I learned that one reason some worry about allowing surrogacy is because they think women (particularly poor and minority women) will be exploited. Catholic groups argue that India, Thailand, and Cambodia have moved to prohibit surrogacy due to the unfair conditions in which women labor in those countries.
“The problem with these arguments is that they conflate an ideological objection to surrogacy with an empirical prediction that surrogates in New York will be abused. Those who shroud their objections to surrogacy in concern over the abusive conditions in other countries actually object to surrogacy on religious grounds or because they think women’s gestational care should never be bought and sold.”
She adds, “I encourage New Yorkers to distinguish ideological arguments from facts and not to be persuaded by arguments that inappropriately refer to other countries. No one can guarantee that every surrogate will feel she was treated fairly, but the proposed New York law gives surrogates a number of very important protections and rights. Legalizing surrogacy would allow for many people in New York to fulfill their dream of becoming parents.”