Last week, the New York state Senate passed a bill to legalize paid gestational surrogacy, but the fate of the bill remains uncertain in the Assembly. Proponents of the bill hail it as an important advance for infertile and same-sex couples seeking to build families. Some of the highest-profile opponents of the bill are self-identified feminists who argue that legalizing the practice will lead to the exploitation of women and the commodification of reproduction.
Gestational surrogacy is already legal or quasi-legal in 47 states, and only New York and Michigan criminalize surrogacy for pay. There’s no good reason why paid surrogacy deserves to be criminalized. But surrogates need bargaining power, to rectify the enormous power imbalance between rich families and poor women in our dramatically unequal society. The solution is to legalize paid gestational surrogacy and help unionize the industry.
Unlike so-called “traditional surrogacy” where the surrogate agrees to give up her genetic child, gestational surrogacy is effectively womb rental. Sperm from the intended father (or a donor) is united with eggs from the intended mother (or a donor) in a lab, and the resulting embryo(s) are transferred to a woman who has agreed to carry the pregnancy, known as a gestational surrogate or a gestational carrier.
Suppose you’re thinking about becoming a paid gestational surrogate. What would you consider a fair fee? Keep in mind that you’ll be providing the service 24 hours a day, 7 days a week for at least 40 weeks, and you may be required to make significant lifestyle changes like giving up alcohol and even sex for the duration. You may also experience back pain, nausea, fatigue and other symptoms.
This is a job that will inevitably put you in the hospital: If everything goes according to plan, you will experience the agony of labor, or major abdominal surgery, or both. But not before you’ve been exposed to months of drugs and tests, each of which has its own risks.
If something goes wrong, this job could permanently disable, or even kill you. Indeed, pregnancy is one of the most common causes of short and long-term disability claims. Gestational carriers may actually be at increased risk of serious pregnancy complications, compared to other women, because of the fertility drugs they have to take and the common practice of inserting multiple embryos to increase the odds of conception, which increases the chances of multiple pregnancies, which in turn greatly increase the odds of complications if all fetuses are carried to term.
To make matters worse, there’s no worker’s compensation for disability or death arising from gestational surrogacy. New York’s proposed law would require proof of health insurance for the insemination period through 8-weeks postpartum. The bill does not, however, require the intended parents to take any responsibility if the surrogate is becomes disabled or to compensate her loved ones in the event of her death.
And consider the emotional stakes. Most people would be broken up about giving away a litter of foster kittens. As a surrogate, you’d have to give up a baby you carried inside you for nine months. Working surrogates say they do this willingly, even joyfully, because of the deep satisfaction of fulfilling another couple’s dream of parenthood. But there aren’t many people with the generosity, mental toughness, and emotional resilience to pull it off.
Given all these risks and sacrifices, and the laws of supply and demand, you would expect that gestational surrogates would earn at least minimum wage for their services. If a surrogate made New York City’s minimum wage of $15 an hour for every hour she is pregnant, she would earn over $100,000 for a full-term pregnancy - not counting pre-pregnancy care and postpartum recovery
When the technology was new, many feared that surrogacy would lead to widespread exploitation. Proponents of legalization say that the early fears have not come true. In fact, exploitation has become the norm. The doctors, lawyers, and middlemen of the gestational surrogacy industry all make well above minimum wage for their services, while the carriers who make the whole enterprise possible, and assume the long-term risk, do not.
Some feminists and religious conservatives argue that surrogacy is inherently exploitative. They claim that women can’t understand the risks that they face or make an informed decision to commit to relinquishing a child.
That logic is pure paternalism. Women are perfectly capable of understanding and consenting to pregnancy in all its forms. Indeed, a woman’s right to make decisions about her own body should include the right to make her own decisions about surrogacy. The natural flipside of the right to choose to end a pregnancy is the right to choose to carry a baby to term.
We’re often told that surrogacy is inherently bad because it commodifies reproduction. There’s no question that it does, but since when is it a bad thing to recognize work as work? Apparently, commodification is only a problem when it’s women, instead of men, who are getting paid. A regular sperm donor in New York can pocket $1,500 a month.
Exploitation isn’t any more inherent to gestational surrogacy than it is to any other kind of work, it’s just that - like all forms of work - women can be exploited when they lack the bargaining power to get a fair deal for their labor.
But surrogacy isn’t necessarily more exploitative than other jobs New Yorkers do. We already accept a woman’s right to commodify her emotional labor as a nanny, nurturing other people’s children. We also accept her right to take a job that is potentially “objectifying,” like modelling or stripping, or physically dangerous, like roofing or commercial fishing. New York is currently considering legalizing sex work.
Just as strippers are beginning to unionize and even to go on strike, collective bargaining is the way to ensure fair labor practices and compensation.
In the current system, a surrogate has little leverage. She may work directly for the intended parents, or she may go through an agency which effectively works for the parents, because they pay the fees. Agencies have an incentive to keep costs down and to cater to the whims of intended parents, because they’re the ones footing the bill. An agency is likely to know a lot more about the going rates for surrogacy in the area than a surrogate is. The total cost of a surrogate pregnancy in the U.S. can easily reach $100,000 or more. A couple with that kind of money is almost certainly in a better bargaining position than a prospective surrogate.
A union would be a counterweight to all the structural bargaining advantages that intended parents and agencies have. It would also be a source of advice, moral support, and education for gestational surrogates. Some feminists have argued that surrogacy is exploitative because it’s a limited-term occupation that doesn’t build skills for the future, but a gestational surrogate’s union could put surrogates on track to apprenticeships and training to transition to other careers.
Illinois recently provided a model of how legislators might go about this. When the state created a new market for legal cannabis, dispensaries were given favorable treatment if they signed so-called labor peace agreements, which smooth the way for their employees to unionize if they want. New York could adopt a similar system of licensing for agencies that coordinate gestational surrogacy.
New York should also pass a law to classify gestational surrogates as employees, thereby entitling them to the equivalent of minimum wage. The state should also require fertility clinics to pay into the worker’s compensation system to provide no-fault compensation to surrogates who are injured by their pregnancies, or to their families if they are killed. The worker’s comp system protects the public as well as the gestational surrogate. If a surrogate becomes disabled, the costs of her care would likely be borne by the public. Requiring surrogate agencies to pay into worker’s comp would prevent them from offloading the true costs of care onto the women or the public purse.
These measures would make gestational surrogacy in New York significantly more expensive, but the industry already caters to a wealthy clientele. One thing that has become clear in the public debate is how prospective parents highly value a predictable path from surrogacy to legal parenthood in New York. Some intended parents will undoubtedly be willing to pay a premium to have everything taken care of here in New York. Some will go out-of-state for cheaper rates, but if they do, New York women who could be surrogates and New Yorkers who want to hire surrogates will be no worse off than they are now.
New York’s bill has some important safeguards for surrogates, but not enough. The legislation stipulates that a surrogate has the power to make her own medical decisions and the final say about whether she terminates the pregnancy.
The bill is silent, however, about whether a couple can refuse to pay the surrogate for a pregnancy she continues or ends against their wishes. The bill gives the surrogate the right to reduce the number of fetuses she is carrying, but it doesn’t give her control over the number of embryos inserted into her body at once. These are the kinds of issues that could be negotiated under a union contract.
It’s unrealistic to expect the state Assembly to add the necessary safeguards to the bill and for the two chambers to reconcile their respective versions by the end of the legislative session. But next session both chambers should introduce a comprehensive bill that protects the rights of gestational surrogates while helping infertile couples build their families.