By Maria Rocha-Buschel
State Senator Liz Krueger, along with Assemblymembers Didi Barrett and Daniel O’Donnell, announced the introduction of legislation that would legalize and regulate surrogacy last Thursday. The legislation would legalize and regulate compensated gestational and genetic surrogacy, in addition to establishing protections for all parties involved in assisted reproductions and egg and sperm donations.
State Senator Brad Hoylman previously introduced legislation to legalize surrogacy that passed in the State Senate but died in the Assembly earlier this year. While Krueger and Hoylman have been in regular communication about the issue, Krueger felt that her bill provides more protections for individuals involved in assisted reproduction and surrogacy than Hoylman’s legislation, so she felt that it was necessary to introduce her own alternative.
“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. “That is why it is vital to have protections in place for everyone involved, especially low-income people. We need to clarify the law in this space in order to make an array of assisted reproduction options available to New Yorkers while also protecting the health, safety, interests and rights of all parties, including intended parents, people acting as surrogates, egg- and sperm donors and children.”
Gestational surrogacy is the process by which a fertilized embryo, created using the eggs and sperm of the intended parents, is implanted into the surrogate mother, meaning that the surrogate is not genetically related to the child. In genetic surrogacy, the surrogate uses their own egg and is artificially inseminated with the sperm of the male intended parent, and the surrogate is genetically connected to the baby.
Krueger’s view is that the previously-introduced bill doesn’t give enough consideration to the health, welfare and rights of people who are acting as surrogates, as well as children born through surrogacy and assisted reproduction, but Hoylman argues that Krueger’s bill does not clarify parental rights, especially those of the intended parents, enough. Krueger’s legislation has a provision that gives surrogates an eight-day period in which they can claim parental rights, where Hoylman’s legislation is unambiguous, allowing for the intended parents to become the legal parents of the child immediately upon birth.
“I think that’s incredibly problematic as a parent who chose surrogacy,” Hoylman said of the eight-day period. “We’re looking for clear laws to protect all the parties, not opening Pandoras boxes that could lead to legal confusion, uncertainty and heartache. The last thing that parents who are struggling with infertility want is a system of laws that create confusion as to who the legal parent is and unfortunately, that’s what Senator Krueger’s bill does.”
Both pieces of legislation would legalize and regulate compensated gestational surrogacy agreements, but Hoylman’s legislation would not legalize compensated genetic surrogacy, with those agreements remaining unenforceable. Hoylman said that his bill specifically does not legalize genetic surrogacy, which he views as “ethically problematic” because of the surrogate’s genetic connection to the child, making parental rights more ambiguous.
“[Krueger is] a great friend of mine and a staunch proponent of women’s health and reproductive rights but on this one issue, I disagree with her,” Hoylman said. “It’s probably shaped by the fact that I am the parent of two daughters born through surrogacy and I know personally how trying the legal process is. In many states, it’s the wild west with no protections for donors or women acting as surrogates.”