Surrogacy is not a gay rights issue; it is a women’s rights issue

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On April 2, New York Governor Cuomo approved a bill legalizing commercial surrogacy despite opposition from women’s rights advocates and fellow lawmakers. The Child-Parent Security Act (CPSA) was tacked on to a budget plan rushed through in light of the COVID-19 pandemic, to provide paid sick leave for New York State, which has been hit hardest in the US, in an apparent attempt to prevent the surrogacy bill from being rejected a second time.

New York state legislators abandoned the CPSA last year after Gloria Steinem wrote an open letter to Gov. Cuomo, outlining the health risks and ethical concerns posed by the industry. She argued:

“Any legislation that legalizes and allows profiteering from body invasion — for instance, becoming an organ donor, an egg donor, or a surrogate womb for impregnation and nine months of pregnancy — must have many more safeguards than this legislation does. For all the years from menstruation until the end of fertility, it could turn the bodies of disenfranchised women, both U.S. citizens and legal and undocumented immigrants, into profit centers.”

In addition, over one hundred New York-based women’s rights campaigners signed a letter expressing their opposition to the CPSA last May, including Taina Bien-Aimé, executive director of the Coalition Against Trafficking in Women.According to Bien-Aimé:

“Both commercial surrogacy and prostitution are industry-driven — one by gestational surrogacy companies, and the other by a multi billion-dollar sex trade and its lobby. Both thrive on the vulnerabilities of disenfranchised people, especially women of colour. Both turn their profits on growing demand for women’s bodies as commodities, and both kick open a wide door for sex and reproductive trafficking.”

Last year, state assemblywoman Deborah Glick, who became the first openly gay member of the legislature in 1991, told the New York Times that surrogacy is not centred on LGBT rights. “I’m not certain that, considering the money involved, that this is an issue for the broader LGBT community… It is pregnancy for a fee, and I find that commodification of women troubling.”

Though New York is only one of three US states that had not yet legalized commercial surrogacy, local legislation previously allowed for what is termed Compassionate Surrogacy, wherein a willing mother may volunteer to birth and give her infant to an intended family. Also protected under New York law was the ability for a mother to keep the child she delivers should she have a change of heart. The CPSA has now removed this right: “The law will make it clear that donors do not have parental rights or obligations and that those rights and obligations reside with the intended parents.”

Referring to women as “gestational carriers,” the bill provides no protection against the trafficking and exploitation of marginalized women over state lines. In order to be considered a “gestational carrier,” one must only have resided in New York for 90 days. Background checks are not required, meaning that anyone could potentially traffic women from any country into New York as a “gestational carrier.”

However, the CPSA was drafted with at least a few good intentions. For instance, the bill specifically allows the mother to make her own decisions about her health, which had not been a right previously protected under other surrogacy contracts globally. It has been standard procedure in multiple countries where commercial surrogacy is practiced, as in India, to allow clinics and intended parents to monitor a woman’s diet and exercise and to deny her pay for breach of contract should she be deemed negligent with her health. In this regard, the senators responsible for drafting the bill no doubt feel they are progressive, and possibly “compassionate” themselves. Yet it is not immediately clear why a state where non-profit surrogacy is already legal would seek to advance the commercialization of womb rental. That surrogacy has primarily been framed as a fight for LGBT rights rather than an issue impacting women’s rights is similarly baffling.

Indeed, New York state Senator Brad Hoylman, one of the key supporters of the CPSA, is a gay man who purchased his two daughters through a “gestational carrier.” He also sponsored a bill aiming to legalize the sale of breast milk in order to create a breast milk industry, and advocates for the legalization of sex trafficking.

Writing for Buzzfeed, New York Governor Andrew Cuomo declared:

“By banning gestational surrogacy, we are saying to the LGBTQ community and those who struggle with infertility: You can’t have a child in your own state.”

Cuomo’s statement is not entirely accurate, and appears deliberately misleading. Gestational surrogacy refers specifically to transferring a fertilized embryo into a woman’s body to which she has no genetic connection. Surrogacy itself is not banned in New York — it is commercial surrogacy, along with gestational surrogacy, that are currently banned. It is legal for a woman to volunteer to act as a birth mother for another couple using IVF, or through natural conception, if she is not financially compensated.

Gestational surrogacy potentially involves the use of two women’s bodies: the egg donor, who is administered powerful hormones to put her body into a temporary state of menopause in order to better harvest her eggs, and a second woman to accept the fertilized embryo transplant and carry the fetus. The only reason intended parents would need to travel out-of-state would pertain to situations involving embryo transplantation, or if no women are willing to act as a “gestational carrier” without economic coercion.

Cuomo, along with supporters of the surrogacy industry, are attempting to portray the issue as an advancement of LGBT rights. Following Taiwan’s 2018 decision to legalize gay marriage, US surrogacy corporations flooded into the country. New York-based campaign group Men Having Babies (MHB) held their first conference in Taipei in 2019 to promote the rental of US women’s wombs by Chinese men. MHB has been actively organizing and campaigning to change international surrogacy laws. In 2019, for instance, the American-based organization held yet another conference in Belgium, asserting that gay men have a right to pay to use women’s bodies to reproduce for them.

Ron Poole-Dayan, founder and executive director at MHB, told the Thomson Reuters Foundation:

“We have been witnessing over the last three years, a growing interest from Asia — mostly Chinese — intended parents coming to the United States for surrogacy. People are starting to realize… the fact that they’re gay doesn’t mean that they’re not going to be able to have a full life including starting a family and having children.”

Surrogacy is a women’s rights issue, and not a human rights issue for homosexual men. This view removes women from the centre of the debate, reframing male entitlement to women’s reproductive function as a pitiable cause to elicit sympathy from would-be progressives. The majority of lesbian couples do not have a pressing need to rent a woman’s body. Even infertile couples have other options, such as IVF, though drugs involved in this type of treatment may increase a woman’s risk of contracting fibromyalgia, ovarian cancer, or a fatal condition known as ovarian hyperstimulation (OHSS). The decision to take these risks is presumably motivated by the woman’s own desire to have a child, rather than by economic coercion to produce a child for someone else (though coercion from a male partner to undergo IVF is not unheard of). Therefore, it is rather obvious that the commercial womb-rental industry confers the greatest benefit to same-sex attracted men, or infertile women, neither of whom undergo the myriad of health risks involved for women who give birth via surrogacy contracts.

Though the CPSA was supported by Democrats and championed by media and politicians as protecting the rights of the LGBT community by supporting their “right” to a family, the CPSA was based on the same principles used by conservatives to control women’s reproductive capacity: namely, that the right to a child carrying one’s own DNA (also known as paternity certainty) is a higher priority than the freedom, health, and lives of women.

Easier access to ethical adoption and addressing discrimination against same-sex couples is an issue of LGB rights; surrogacy is fundamentally concerned with female bodies, and no one, regardless of their orientation, has the right to pay for the use of a woman’s body. It is a disservice to women and the LGB community alike to continue to frame the ability to rent women’s bodies as a right — one that is inextricably linked to same-sex orientation. Bills that seek to regulate the industry often reveal their homophobia by excluding sperm donation, which benefits lesbian couples, or by also banning adoption for gay couples. Women must demand that this issue focus on the rights of women, or we will continue to have our rights legally bound to men’s sexual rights.

But, perhaps to obscure this reality, the language of the CPSA went to great lengths to erase biological sex. A significant number of edits were made by Democratic lawmakers wherein “mother” was crossed out and replaced with “gestational carrier,” or “person who gave birth.” Such terminology explicitly mirrors the way conservative anti-choice advocates view women, referring to women as “host bodies,” for example. In this case, “gestational carrier” is used to refer to the woman whose body is being used to gestate a fertilized embryo that does not carry her DNA, though “handmaid” might be a more appropriate term.

Similarly, many instances of the term “woman,” “man,” and “paternity” have been removed and replaced:

“A [woman] genetic surrogate agrees either to be inseminated with the sperm of a [man] person who is not her [husband] spouse or to be impregnated with an embryo that is the product of [an] the genetic surrogate’s ovum fertilized with the sperm of a [man] person who is not her [husband] spouse.”

Language is being deliberately obfuscated to cover up what this issue is really about: fundamentally, legalizing commercial surrogacy would secure male entitlement to paternity certainty — so a man can be assured the child is his genetic descendant. This is not a new concept — rather it is the basis of patriarchy. For centuries, men have subjugated women in order to secure their paternity.

At Fair Observer, Dianne Post explains:

“The birth mother is not in the place of another; she is the mother. That was the law in every country in the world until now. We always knew who the mother was — she was the one who gave birth. That is the first definition of a mother. We weren’t so sure about the father, which is why women’s freedoms have been curtailed so men could be assured of their lineage. Now, with DNA, we can be scientifically certain of the father. So the first ‘success’ of the surrogacy movement was to change the definition of the mother and remove the woman who gave birth from the frame. By applying the word ‘surrogate’ to the wrong person, it depresses the position of the birth mother but does not elevate the position of the other woman. Instead, the position of the sperm donor, or the father, is elevated as the only person with rights.”

In reality, a surrogate is someone other than the birth mother who raises a child; this means that commercial surrogacy refers to the birth mother as the improper parent, while conferring authority and legitimacy to the male parent or intended parents. In this way, the true aim of the industry reveals itself: the commodification of the female body for the extraction of reproductive labour, in order to protect paternity certainty and replicate the male’s genetic material for him.

This is especially troubling given that there are no official records kept regarding how many women die in the surrogacy industry. In January, Michelle Reaves died due to complications from a surrogacy birth. Reaves succumbed to a condition known as an amniotic fluid embolism. According to a statement from the Center for Bioethics and Culture (CBC):

“Recent studies have shown that surrogate pregnancies are different and are high-risk. Studies show that women pregnant with donor eggs (as in gestational surrogacy) have a more than three-fold risk of developing pregnancy induced hypertension and pre-eclampsia.”

All surrogate pregnancies are medically classified as “high-risk” due to the use of hormones involved, and even egg donation confers risks of developing endometriosis, infertility, or the fatal condition of OHSS.

By passing the CPSA quietly and attaching it to a budget intended to help those suffering financial repercussions as a result of a global pandemic, New York lawmakers are sending a clear signal that they are deliberately ignoring women’s opposition to the surrogacy industry, and that they value profit and male entitlement to use female bodies over women’s safety and health. Surrogacy is a predatory, profit-driven industry — whether appealing to women’s kindness through terms like “compassion” and “altruism,” or exploiting marginalized women in economic need, it turns both women’s bodies and children into a commodity to satisfy the desires of the wealthy for a child that carries their genetic material.

Genevieve Gluck

Genevieve Gluck is a writer and advocate for women's sex-based rights and creator of Women's Voices, an audio library dedicated to bringing awareness to feminist texts and speeches.