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A resounding no to commercial surrogacy.

A Resounding No to Commercial Surrogacy

When four bills embodying different approaches to surrogate motherhood were introduced in the New York State legislature in 1987, Governor Mario Cuomo asked the New York State Task Force on Life and the Law to give the issue priority on its agenda.

After deliberating for more than a year, the Task Force released its report, "Surrogate Parenting: Analysis and Recommendations for Public Policy," in May. The twenty-six Task Force members (including physicians, nurses, philosophers, lawyers, and clergy) reached a unanimous conclusion that public policy should discourage surrogate motherhood, or "surrogate parenting" as the Task Force renamed the practice. The report proposed that this goal be achieved through legislation declaring surrogate contracts "void as against public policy" and prohibiting fees to surrogates and surrogate clinics.

The Task Force explained that these measures were designed to "eliminate commercial surrogacy and the growth of a business community or industry devoted to making money from human reproduction and the birth of children." The proposed legislation would leave voluntary, noncommercial surrogate parenting to be regulated by existing laws on adoption.

Task Force members discussed at length the social and moral issues posed by surrogacy, focusing first on the interests of children. Concluding that commercial surrogacy cannot be distinguished from the sale of children, they proposed that existing laws against baby selling should apply. The Task Force noted the serious long-term implications for the way society thinks about and values children as well as the immediate risks posed to the children involved.

Like the New Jersey Supreme Court, the Task Force rejected contract law and commercial rules as a basis for regulating surrogate parenting arrangements. It asserted that reliance on contract law as a prescriptive standard for personal relationships embodies a profoundly pessimistic vision of the potential for human relationships and intimacy in contemporary society. The Task Force further denounced the notion of gestation as a "service" because it depersonalizes women and their role in human reproduction by "treating women's ability to carry a child like any other service in the marketplace--negotiable between the parties about basic issues such as price and the medical treatment provided the birth mother."

The Task Force recognized that it may not be possible for women to give informed consent to the surrender of a child prior to the child's conception and birth, but denied this judgment diminishes the autonomy of women. It concluded that society should not penalize women by demanding a degree of certainty and irrevocability that is not required of men or women in making other important life choices.

In addition, the Task Force examined the constitutional questions posed by surrogacy as one benchmark for public policy. If flatly rejected the arguments made by some legal scholars that the right to enter into a surrogate parenting agreement is protected by the Constitution as an extension of the right to reproduce. Governor Cuomo convened the Task Force in March 1985 to devise public policy on issues posed by medical advances. Copies of its reports can be obtained by calling the Task Force at 212-613-4286.
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Author:Miller, Tracy E.
Publication:The Hastings Center Report
Date:Aug 1, 1988
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