Clinic Releases Report on Surrogacy as New York Contemplates Potential Change to State Ban

Columbia Law School's Sexuality and Gender Law Clinic Provides Analysis of Surrogacy Law in Preparation of Proposed Bill in the State Legislature

New York, June 28, 2016—Columbia Law School’s Sexuality and Gender Law Clinic has released a report featuring a comprehensive survey of surrogacy law, arguments for and against the practice, and analysis of pending legislation in New York State. Currently, surrogacy is banned in New York, unlike in many other neighboring states, but the legislature has been considering an overhaul to this prohibition - during the recently-ended 2016 session, the proposed bill was the Child-Parent Security Act, Assemb. B. 4319, 2015 Assemb., Reg. Sess. (N.Y. 2016).

The clinic’s report, Surrogacy Law and Policy in the U.S., discusses how surrogacy—the practice of carrying a child on behalf of someone else—raises many complex, contested, and ever-developing questions at the intersection of the law, science, ethics, and public policy. Surrogacy concerns both the most intimate and deeply personal aspects of family life, but also important public matters about promoting and protecting the best interests of vulnerable groups such as children, women, and minorities, both nationally and across international borders. At least several thousand children are born each year as a result of surrogacy arrangements, and this could be a significant understatement.

“This project has been a great opportunity to present the arguments on both sides of a complicated issue, as the legislature is considering an important change to New York law,” said Sarah Mac Dougall ’17. “We hope our findings shed light on the proposed legislation, or similar bills in other states.” This report aims to inform advocates and citizens about important developments and fundamental issues concerning surrogacy, and such information can be a particularly useful tool in evaluating proposed changes in state surrogacy laws.
The report reveals that there are strong arguments from commentators both in favor of banning surrogacy and in favor of legalizing but carefully regulating the practice. Furthermore, regulation takes a wide variety of forms, and it is important to consider how exactly New York State may regulate surrogacy should it choose to do so.
The strongest argument in favor of abrogating the ban is the fact that most other U.S. states, including those bordering New York, allow surrogacy. This imbalance creates an incentive for couples, such as gay and lesbian couples or partners suffering from infertility, to cross state lines to circumvent the law in New York. However, an argument for retaining the ban is the concern that surrogacy is an inequitable practice that will result in lower-income women taking on the health risks of pregnancy in order to receive a sizeable fee. Some states and other countries have dealt with this concern by banning commercial surrogacy and only allowing uncompensated surrogacy. The New York State legislature is scheduled to vote on the proposed Parent-Child Security Act later this summer.
The report culminates a semester of work on the topic of surrogacy law, and was prepared by Columbia Law School clinic students Alex Finkelstein ’17, Sarah Mac Dougall ’16, Angela Kintominas ’16 LL.M., and Anya Olsen ’17.