Monday, November 26, 2018

Is legal commercial surrogacy coming to New York and Michigan?

New York and Michigan are two states in which  surrogacy is illegal, but the winds of change are blowing, with new legislation that would legalize it introduced, but not yet passed.  (My understanding is that in both states, surrogacy contracts are presently unenforceable, and there are criminal penalties for commercial contracts.)

Possible changes in New York's surrogacy law are discussed in the New York Law Journal:

Surrogacy in New York: Boon or Bane?
By Harriet Newman Cohen and Kristen E. Marinaccio | July 27, 2018

"New York, like many other states, enacted legislation prohibiting surrogacy agreements following the heartbreaking drama of Baby M. Three decades later, New York is one of just four states1 that still bans surrogacy agreements—however, that soon may change. This article will discuss the proposed legislation known as the “Child-Parent Security Act of 2017” (CPSA) which would lift the ban on surrogacy agreements in New York. It will explore the subtle and not so subtle benefits and burdens that may ensue if the legislation is passed.

"Baby M’s Influence on N.Y. Law Makers
In the mid-1980’s, before Baby M, many states including New York were considering enacting legislation to regulate surrogacy agreements.2 By early 1987, a bill was pending in the New York Legislature.3 That same year, just across state lines, in New Jersey, an emotional legal battle was being waged against a traditional surrogate, Mary Beth Whitehead, when she refused to surrender “Baby M” to the intended parents, Elizabeth and William Stern.4 The dramatic media coverage of the Baby M case, which included images of the police forcibly removing the baby from Ms. Whitehead’s arms, quickly caught the public’s attention.5 By June, 1987, facing fierce opposition from feminist and religious lobby groups, a seemingly antithetical coalition, the pending bill in New York was withdrawn.6

"In 1988, the New York State Task Force on Life and the Law unanimously concluded that New York should discourage traditional and gestational surrogacy agreements.7 In 1992, the New York State Legislature adopted that recommendation, declaring all surrogacy agreements void and unenforceable.8"

In Michigan, two bills introduced (but not yet passed):

SENATE BILL No. 1082 September 5, 2018, Introduced by Senators WARREN, ANANICH, CONYERS and YOUNG and referred to the Committee on Families, Seniors and Human Services.      A bill to establish gestational surrogate parentage contracts;  to allow gestational surrogate parentage contracts for  compensation; to provide for a child conceived, gestated, and born  according to a gestational surrogate parentage contract; to  prescribe the duties of certain state departments; to provide for  penalties and remedies; and to repeal acts and parts of acts.

The companion SENATE BILL No. 1084 provides for an appropriate birth certificate with the intended parents as the parents.

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