Surrogate Parenting: Analysis and Recommendations for ...

Surrogate Parenting: Analysis and

Recommendations for Public Policy

The New York State Task Force on

Life and the Law

May 1988

New York State Task Force on Life and the Law

Task Force Members

David Axelrod, M.D., Chairman

Commissioner of Health, State of New York

Karl Adler, M.D.

Dean, New York Medical College

Rev. Msgr. John A. Alesandro

Chancellor, Roman Catholic Diocese of Rockville Centre

John Arras, Ph.D.

Clinical Associate Professor of Bioethics Albert Einstein College of Medicine/Montefiore Medical Center

Mario L. Baeza, Esq.

Debevoise & Plimpton Lecturer, Harvard Law School

The Right Reverend David Ball

Bishop, Episcopal Diocese of Albany

Rabbi J. David Bleich

Professor of Talmud, Yeshiva University, Professor of Jewish Law & Ethics Benjamin Cardozo School of Law

Evan Calkins, M.D.

Head of Division of Geriatrics SUNY Buffalo and Buffalo VMAC

Richard J. Concannon, Esq.

Kelley, Drye & Warren

Myron W. Conovitz, M.D.

Attending Physician, North Shore University Hospital

Saul J. Farber, M.D.

Dean and Provost Chairman, Department of Medicine New York University Medical Center

Alan R. Fleischman, M.D.

Director, Division of Neonatology Albert Einstein College of Medicine/Montefiore Medical Center

Samuel Gorovitz, Ph.D.

Dean, College of Arts and Sciences Professor of Philosophy Syracuse University

Beatrix Ann Hamburg, M.D.

Director, Division of Child and Adolescent Psychiatry Professor of Psychiatry and Pediatrics Mount Sinai School of Medicine

Denise Hanlon, R.N., M.S.

Clinical Instructor of Nursing, SUNY Buffalo School of Nursing

Helene L. Kaplan, Esq.

Webster & Sheffield Chairman, Board of Trustees, The Carnegie Corporation

Rev. Donald W. McKinney

First Unitarian Church President Emeritus, Concern for Dying

Georgia L. McMurray, C.S.W.

Former Deputy General Director Community Service Society of New York

Maria I. New, M.D.

Chief of Pediatrics New York Hospital/Comeli Medical Center

Ruth O'Brien, Ph.D.

Assistant Professor of Nursing University of Rochester School of Nursing

John J. Regan, J.S.D.

Professor of Law, Hofstra University School of Law

Rabbi A. James Rudin

National Director of Interreligious Affairs The American Jewish Committee

Rev. Betty Bone Schiess

Episcopal Diocese of Central New York

Barbara Shack

New York Civil Liberties Union

Rev. Robert S. Smith

Director, Chaplaincy Services SUNY Health Science Center at Stony Brook

Elizabeth W. Stack

Ombudsman Syracuse Developmental Center

Staff Members

Tracy E. Miller, J.D.

Executive Director

B. Andrew Lustig, Ph.D.

Elizabeth A. Peppe

Suzanne Israel Tufts, J.D. (Consultant)

Mary L. Montgomery

Robert N. Swidler, M.A., J.D.

Contents

Preface

i

Executive Summary

iii

Introduction

1

PART I

The Medical, Legal and Social Context

One:

Two: Three:

Four: Five:

Six:

Infertility - Rates, Causes and

Prevention

7

Assisted Reproduction

19

Applying New York Family Law to

Surrogate Parenting

31

The Constitutional Parameters

59

The Ethical and Social Dimensions of

Surrogate Parenting

71

The Public Dialogue

97

PART II

Deliberations And Recommendations Of The Task Force

Seven:

Devising Public Policy on

Surrogate Parenting

115

Eight:

Disputed Surrogacy Arrangements:

Allocating Parental Rights and

Responsibilities

129

Conclusion

139

Appendix: The Proposed Surrogate

Parenting Act

A-l

Preface

In March 1985, Governor Cuomo convened the Task Force on Life and he Law. He asked the Task Force to develop recommendations for public policy on a range of issues arising from recent advances in medical technology: the determination of death, the withdrawal and withholding of life* sustaining treatment, the new reproductive technologies, the treatment of disabled newborns, organ transplantation and, in a more limited context, abortion.

The Executive Order creating the Task Force charged the Task Force to address issues posed by artificial insemination and in vitro fertilization. In the wake of the Baby M trial, the practice of surrogate parenting gained national prominence and immediacy. By the spring of 1987, the New York State Legislature faced four bills on surrogate parenting, each embracing different solutions and approaches. At the request of Governor Cuomo, the Task Force made the issue a priority on its own agenda.

The Task Force spent many months educating itself about surrogate parenting. Part I of the Report presents the results of that educational effort which provided the context for the Task Force's deliberations. The deliberations and recommendations of the Task Force are set forth in Part II of the Report.

The Report seeks to inform and focus the public debate about surrogacy. The Task Force hopes that the consensus forged among its diverse membership will serve as a catalyst for public resolution.

Despite the diversity of opinion and belief represented on the Task Force, its members reached a unanimous judgment that public policy should discourage surrogate parenting. The Report contains specific recommendations, including a legislative proposal on how that goal is best achieved.

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