Keeping Paid Surrogacy Legal Is a Feminist Issue

The year is 2019, but even now, the divisiveness of “women’s issues” and “reproductive rights” shows that the very autonomy of women is still controversial across the globe. There are already deep battle lines drawn between those who believe women should choose and those who believe the state should compel women to become mothers against their will.

There are also those who believe feminine hygiene products shouldn’t be taxed and birth control should be an expected part of health insurance coverage. There are many others who disagree or don’t care.

So, it’s a surprise to find even many top-tier feminists, at this late hour, who are opposed to paid surrogacy. By any measure, this is a feminist issue – or should be. It’s an intersectional issue, too, since it involves and benefits the LGBTQ+ community. Let’s look at the battle that’s brewing and why certain people seem to be tilting at what are arguably the wrong windmills.

New York State an Unexpected Flashpoint

As of this writing, there are only three states in the U.S. which have a total ban on paid surrogacy. These are Louisiana, Michigan and New York. Not that terms like “blue state” or “red state” mean much anymore, but this is a surprising assortment of holdouts.

New York is looking to join most of the rest of the country in 2019 by making paid surrogacy contracts legal. There are 11 states, including neighboring New Jersey, which have long had legal surrogacy in place. The remaining states, plus D.C., permit paid surrogacy with various degrees of red tape and legal hurdles.

The fact is, paid surrogacy is a bit of a settled issue. The states disagree on the amount of oversight required, but the U.S. has been trending toward 100% legal surrogacy for years. So why is this in question now?

New York State’s proposal to legalize paid surrogacy contracts was an expected slam dunk until the “eleventh hour” and the final days of the state’s first Democrat-majority session in ten years. Governor Andrew Cuomo supported the measure and it passed the state Senate, only to fail in the Assembly due to a lack of votes – especially, apparently, among female lawmakers.

Others spoke out too, including famous feminists like Gloria Steinem. Senator Liz Krueger, a self-styled progressive, was also an outspoken critic of New York’s proposal: “I do understand the issue of having trouble with fertility. I myself couldn’t have children…[but] you’re buying and selling eggs, and you’re renting wombs.”

This is literally correct. But it’s an argument that feels stuck out of time somehow. To hear some tell it, it’s a black-and-white case of a woman getting to choose how her body is used, or not getting to. Yes – paid surrogacy literally involves a woman “selling the use of her body.” But it’s up to that woman, that specific woman, and nobody else, to assign a moral value to that decision. And it’s up to the rest of us to keep those women as safe as possible. That means making it legal and safe to engage in contracts of this nature.

Despite what is being discussed in popular culture right now surrounding the issue, this writer would argue that you can support paid surrogacy and still be a proud feminist. In fact, I’d argue it’s essential to support this issue if you believe you’re a feminist.

Why Paid Surrogacy Should Be a Feminist Issue

New York isn’t making a mistake here because 47 other states beat them to it. They’re making a mistake because failing to legalize paid surrogacy contracts means women there have one fewer choice they can make in life. And that’s a dangerous direction for a country to move in, or any territory within that country.

There are many reasons, apart from keeping women safe and in control of their destinies, why paid surrogacy should be legal everywhere with an appropriate amount of oversight. Couples who cannot conceive and LGBTQ+ couples, need a helping hand sometimes when they want to conceive a child but can’t do so on their own.

Deborah Glick, who became the first openly gay member of New York’s Legislature back in 1991, wasn’t having any of it: “I’m not certain that, considering the money involved, this is an issue for the broader LGBT community…It is pregnancy for a fee, and I find that commodification of women troubling.”

Senator Brad Hoylman, a sponsor of the bill, fired back, saying the measure showed “the importance of the LGBTQ community to the state of New York” and that he thinks “it’s a mark of progress for our community and a mark of progress for human rights in general.”

Surrogacy contracts can range in value from $20,000 to $200,000. It is mostly well-heeled couples who engage in this practice. And it’s obvious that opponents to paid surrogacy have reason to be skeptical:

“Cross-border surrogacy” is a real phenomenon, and it involves wealthy couples traveling to low-income countries to engage in a kind of creepy, predatory surrogacy tourism. Globalization isn’t dangerous in itself, but a lack of consistent regulations and oversights in a “global market” put women everywhere at risk of falling victim to exploitation of all kinds – including surrogacy contracts drawn up in bad faith.

It feels like New York is on the wrong side of history here. They’ve dug in their heels on an issue that the U.S. needs to stand together on because the world needs unity here too. Surrogacy doesn’t commodify the female body – at least, not in a way that runs afoul of feminism as I and many of us currently understand it. Arguing that it does feel like a step in the wrong direction: a declaration that the right of women to choose their destinies halts the moment they choose a course that makes one or two of us uncomfortable.