Opinion: NYS Must Revisit its Rushed Move to Legalize Surrogacy

At the height of the pandemic, away from advocate’s oversight, New York State passed a bill legalizing commercial surrogacy in a manner “closed to the public…decided in back rooms”– a bill that could have waited until we weren’t overwhelmed keeping ourselves, our families and our communities alive.

It was passed without the women, whose lives will be most imperiled, being central to the discussion – in particular those women without race or economic clout, or connections to the political class.

New York State already offers altruistic surrogacy to women choosing to be surrogate mothers who have decided they are able to do so freely, and fully desire to.

Regardless of opinions on this bill, to guarantee the informed consent and aware evaluation by the governed, this law should be repealed, and local state-wide public hearings should be held with those most impacted invited to weigh in.

Real choice is complex in an unfair world. Few women escape the pressure to self-sacrifice when entire economies (and families) depend on women’s unpaid/poorly paid “essential” labor to meet the basic needs of humanity. Many women become disproportionally impoverished as life goes on and too often land in old age in a merciless marketized “care” system.

Given the risks of pregnancy/egg extractions, incentivizing a woman in financial need to care less for herself than for those wishing to parent a genetically related child is at least worthy of robust discussion.

The health dangers associated with commercial surrogacy exceed the usual risks that cme with pregnancy and childbirth. These include preeclampsia, heart failure, stroke, cesarean section, subsequent pregnancy complications, ovarian hyperstimulation syndrome, potential complications of abdominal pain, blood clots and in rare cases, death.

Women are already besieged simply for having a female body–prenatally and into old age. Our bodies are fine, sexism isn’t. It’s enmeshed within larger systems of exploitation and absorbed, regardless of any individual man’s stances. It’s woven into societies, a prerequisite for sexual harassment, abuse, exploitation, rape, domestic violence, femicide, body shaming, male preference, forced sterilizations, denial of reproductive health access, and more.

Our bodily sovereignty is always in question.

Girls are primed to absorb male damage and to “go second” on behalf of others. In societies that condone or endorse an ethos of taking advantage of others, the combination shapes the erasure of a vibrant female self.

Even if we personally elude the worst, no girl avoids growing up in a world with an unspoken requirement to be at the behest of males, especially those who have financial, age, caste, class, race, origin country, heterosexual, and/or social status dominance.

In the U.S. we cling to a belief in our freedom of choice but rely on the un-chosen sacrifice by the many, and the avoidance of it by the few. The consequences are largely absorbed by women, people of color, wage workers, immigrants, the altruistic, and/or the poor (as the pandemic made visible).

We all have to make the best choices we can, with existing options that are always narrowed by oppressions. That’s one reason never to second guess how any individual woman or girl survives sexism. Survival is a victory that not all women or girls get to celebrate.

But when a state seeks to enshrine those individual “choices” (whether personal wants or necessary survival strategies) within law, that requires a higher bar, one that considers the impacts to the larger community. 

If a law colludes with, intensifies, or cultivates conditions that could further entrap, risk and exploit those with no institutional power to end their systemic exploitation, society has an obligation to refuse.  

We are long overdue in basing our collective lives on our collective wellbeing. In our current environment, with the ubiquity of internalized sexism and structural male domination along with a severe and punishing market system, instituting commercial surrogacy is unconscionable. It coldly calculates creating the conditions whereby a woman is paid to discount her own life to enhance someone else’s and provide profit for others.

Racism, sexism,immigration status, LGBTQ oppression, ageism and poverty all play and have played grievous, imbalanced, irrational roles in who gets to parent, who gets to have a parent, who gets to survive to be a parent/child, whose child is taken from them, whose parents are taken from them, and more.

Unequivocally, oppression should have no place in deciding anything about who becomes or stays or survives to be a family.

In effect, New York just unleashed another resource extraction industry with entire networks of hospital systems, lawyers and other profiteers–abetted now by the state. The resource being extracted is a generation of younger women in a time of rising college debt and no jobs. Commercial surrogacy has been outlawed in much of the world. Yet Global Market Insights still sees growth potential: $27.5 billion in 2025.

Some wish to end the practice of surrogacy, including altruistic surrogacy. Some defend commercial surrogacy as an antidote to oppression. Others are indignant that their struggle for liberation is now used in defense of the exploitation of others, for the well-off, and/or for profiteers. As Gary Powell has said, it’s “a hijacking of the gay rights movement by the multi-billion dollar Big Fertility industry . And as Assemblywoman Deborah Glick has observed, “considering the money involved…This is clearly a problem for the extraordinarily well-heeled.”  

It may be tempting, if you have the means, to try to buy a way out of life’s heartaches, out of oppression–an impossible, pretend escape from human damage, fragility, loss and regret. It never did work, for anyone.

We need to fight better fights and get better answers.

K Webster is a community organizer in Manhattan.