Gov. Andrew Cuomo is backing a new surrogacy law, and though it could be worse, it’s still bad. It’s called the Child-Parent Security Act, and it would decriminalize and enforce agreements in which a woman rents out her uterus to carry another couple’s child.
Obviously, any child born this way should be welcomed into the world as much as any other. Especially after the state Legislature disgraced itself by legalizing what amounts to infanticide.
Second, we can be thankful the bill is restricted to “gestational” and not “traditional” surrogacy. In traditional surrogacy, the surrogate is the real mother, in that it’s her egg that is used. In gestational surrogacy, mature eggs are collected from the ovaries of one woman and fertilized by sperm in vitro in a lab. The fertilized egg or embryo is then transferred into the uterus of a second woman, the surrogate. Today about 95 percent of surrogacies are gestational.
The difference matters. In a traditional surrogacy, the surrogate bonds with the baby in a much more intense manner, and her pain in surrendering the child can be devastating. That’s what happened in the Baby M case, which brought surrogacy to our attention.
Mary Beth Whitehead was a relatively poor woman who agreed to donate her egg and bear a child with William Stern through artificial insemination. When she entered into the contract, she knew just what she was doing. But when her child was born she couldn’t give it up.
Whitehead fell into the deepest despair and fled with the child from New Jersey to Florida. There she hid, living in motels for three months, until the police found her and seized the child.
That was 24 years ago, and it came as a complete surprise. We learned that fertility clinics had created an underground surrogacy industry.
The case reminded us of the strength of the genetic bond between natural parents and their children. It taught us something about what freedom to choose means and how a person who enters into a surrogacy contract might not be the same person when she has to give up the baby.
We also got a lesson about the class divide.
Cuomo’s CPSA doesn’t come out of the blue, like the Baby M case. Today, surrogacy is more common, and in fact it’s been fully legalized in 42 states; only New York and Michigan criminalize it.
And the ban on traditional surrogacy would continue, so we won’t see a Mary Beth Whitehead compelled to give up her own child. The genetic instinct to keep a child with whom you share 50 percent of your genes would be absent when the surrogate and the child are genetically unrelated.
Nor is gestational surrogacy baby-selling. And let’s stipulate that an infertile couple that wants a child is ordinarily to be admired, not condemned. They typically learn about the surrogacy option only after fruitlessly spending thousands of dollars at a fertility clinic. Let’s also agree that it doesn’t make sense to criminalize any of this.
But still . . .
The CPSA would make it legal for a woman to rent out her womb. And if she can do that, why shouldn’t she be able to sell her liver, kidneys or eyes? That’s the logic of “my body, my choice.”
The judge in the Baby M case said, “There are, in a civilized society, some things that money cannot buy.” Is that out the window now?
Second, the Left used to have a fine eye for power relations, the kind of oppression that might arise where there is an inequality in bargaining power.
But that is exactly what’s going to happen in surrogacy contracts, where poor women rent out their wombs to rich men whose wives can’t have or can’t be bothered having children. That was the Baby M case, where Mrs. Stern postponed having children until she got her MD, and then worried about health risks that the court thought were minimal.
Power imbalances used to bother the Left. But that was before it found that the Mary Beth Whiteheads were deplorables, and that the very professional Mr. and Mrs. Sterns were more their cup of tea. From a party that in the past would have allied itself with surrogate moms and seen them as Margaret Atwood’s handmaids, it became the party that wants to rent their wombs.
F.H. Buckley teaches at Scalia Law School and is the author of “The Republican Workers Party: How the Trump Victory Drove Everyone Crazy, and Why It Was Just What We Needed.”