As of Friday, June 21, in the state of New York, it remains illegal to pay a surrogate to carry your baby. A bill to legalize commercial surrogacy in the state, while passing 40-21 in the state senate, was never brought to a vote in the assembly before the New York legislative session ended. Why? Because a number of people, including a powerful group of women, came out against it.
Gloria Steinem, along with women in the state assembly and a number of prominent feminists, have said that legalizing paid surrogacy will “will undermine women’s control over their bodies, thwart women’s reproductive rights, render women vulnerable to reproductive trafficking and exploitation, and further subordinate and harm women, especially those who are economically disadvantaged,” as they put it in a June 1 letter to Governor Andrew Cuomo.
I’m going to leave aside, for a moment, the cherry-picking of data, the broad generalizations, and the anti-sex worker rhetoric in the letter. As a birth mother, I have a unique relationship to surrogacy. If surrogacy isn’t legal, then the families who would otherwise create families through surrogacy are going to create their families through other means, one of those means being adoption. And to be honest, I don’t think adoption is as rosy an alternative as the anti-surrogacy advocates seem to believe.
Pretty much all the arguments against surrogacy, in my opinion, could also be spun as arguments against adoption.
Surrogacy, when properly regulated, is a consensual contract into which surrogates enter voluntarily, and for which they are fairly compensated (about $48,000-55,000, according to the surrogacy agency Conceiveabilities). Adoption, on the other hand, is the result of an unplanned pregnancy rather than a planned one, and does nothing to improve the financial situation of the pregnant person. Adoption is not opt-in, like surrogacy; it happens when the only other option is “have a kid I don’t have the money to parent.” It’s an arrangement that almost always leaves the birth mother heartbroken, even in open adoptions and best-case scenarios.
Pretty much all the arguments against surrogacy, in my opinion, could also be spun as arguments against adoption, with the exception that surrogates get paid, and birth parents do not. Let me be extremely clear: I very much do not think birth parents should get paid. When birth parents receive money, that’s coercion at best and child trafficking at worst. (The birth mother might receive assistance for certain costs — for instance, when I placed my kid for adoption, I received reimbursement for my doctor’s bills and my transportation to and from the adoption agency. But there are laws about what the birth mother can legally get paid for, which I think is a fantastic thing.)
However, when someone volunteers the physical labor to get pregnant with a child that did not come from their own egg, that person should get paid for it. Right now, it is legal to be a surrogate in New York; it’s just not legal to get paid. Thus, the state of the law leaves hopeful families who can’t conceive on their own reliant on the generosity of friends and family members to carry a baby to term, or paying the additional cost to hire an out-of-state surrogate. It proves, yet again, that creating a family is an issue of accessibility, discrimination, and means. Legalizing paid surrogacy wouldn’t solve this issue, but neither does keeping it illegal; on average, it costs $40,000-60,000 or more to adopt a kid.
The anti-surrogacy letter refers to the surrogacy industry as “a ruthless industry eager to profit from their exploitation.” This description could, frankly, just as easily apply to the adoption industry. Adoption is a $16 billion industry in the U.S. alone, funded by adoptive parents (on average, it costs $40,000-60,000 or more to adopt a kid), and legal loopholes make it incredibly easy to coerce and take advantage of birth mothers.
For instance, while a social worker might soothe a birth mother by saying that the adoption will be open, many open adoption agreements are not legally enforceable — mine isn’t. If the adoptive parents decide that the adoption is no longer open, then that’s the end of that. And plenty of adoption agencies and “crisis pregnancy centers” (aka fake health clinics) thrive on using religious messaging to tell pregnant people that their child will be “better off” with another family, sometimes even physically separating the pregnant person from their community so they’re more receptive to the agency’s messaging.
Economically disadvantaged people with uteruses are already being exploited, whether New York legalizes surrogacy or not.
I was lucky. I had a social worker who always endeavored to help me find the solution that was right for me, telling me from day one that she had no investment in getting me to choose adoption. I was never coerced. My agency also encouraged open adoption on the adoptive parent side, and my son’s adoptive parents want as open of an adoption as I do. In many ways, I have a best-case scenario, and I don’t regret my decision.
But the facts remain that: 1) adoption is an industry funded by adoptive parents, and therefore the industry is set up to meet their needs first and foremost; 2) the adoption industry runs on the heartbreak of people below the poverty line with uteruses; 3) even though birth mothers routinely experience “a sense of loss that is all-encompassing,” almost none receive post-placement mental health care from their agency; and 4) there are very few legal protections in place to prevent agencies from coercing pregnant people into relinquishing their children. Economically disadvantaged people with uteruses are already being exploited, whether New York legalizes surrogacy or not.
Deborah Glick, one of the surrogacy bill’s opponents and the first openly gay person to sit on the New York State Assembly, has told reporters, “I know that we have hundreds of thousands of youngsters looking for [adopted] families.”
Presumably, this is a reference to foster children: on any given day, there are 443,000 children in foster care in the United States per the department of Health & Human Services. The majority of those children, however, are not eligible for adoption; according to Adoption Network, only about a quarter of those foster kids are available to be adopted. (In 2017, about 57,000 foster children were adopted.) And adopting from foster care presents its own ethical murkiness: if a child has been in foster care for 15 out of 22 months, “the state must initiate a termination of parental rights procedure” as federal adoption requirements state (emphasis mine). That means that the child’s birth parents do not voluntarily relinquish their parental rights, as (supposedly) happens with birth parents who relinquish a newborn.
I don’t think surrogacy should be legalized lightly; I think it should be regulated to within an inch of its life, to protect surrogates and the children they carry. But if we’re going to have a conversation about economically disadvantaged people with uteruses being “exploited,” then we need to talk about how that’s already happening in adoption. And what we’re going to do about it.