It’s been a disappointing few days for legislation that would have helped LGBTQ families, as bills that would have more effectively protected families formed through assisted reproduction failed in both New York and Rhode Island.
In New York
The New York Child Parent Security Act, sponsored by Senator Brad Hoylman and Assemblywoman Amy Paulin, would have updated New York law to support and protect families that use reproductive technologies, such as assisted insemination, in vitro fertilization, or gestational surrogacy. The bill would have allowed intended parents who use a sperm or egg donor to seek a Judgment of Parentage, involving a much cheaper, simpler process than a second-parent adoption (a single court appearance and no home study). It could have been completed before the child was born, taking effect from the moment of birth. As a court judgment, this would be as legally binding as a second-parent adoption.
The bill would also have legalized gestational surrogacy (where the surrogate is not genetically connected to the child because she did not contribute her egg), provided that the arrangement follows “best practices” that protect the interests of the surrogate, intended parents, and child. New York is one of only two states that currently criminalizes compensated surrogacy.
Despite support from Governor Andrew Cuomo and talk-show host Andy Cohen, a gay dad, the bill passed the state Senate but never made it to the House floor. At Above the Law, attorney Ellen Trachtman reports that the problem may have been that New York had followed neighboring New Jersey in banning all compensated surrogacy after the “Baby M” case of the 1980s, in which a genetic surrogate (carrying a fetus created from her own egg) refused to give up the child after it was born. New Jersey, however, was able to enact legislation last year allowing gestational surrogacy. In New York, however, the author of the original New York ban, Helene Weinstein, is still in the Assembly, and fought the bill. Additionally, Gloria Steinem (yes, feminist icon Gloria Steinem) wrote a letter against the bill, saying that surrogacy will mean “women in economic need become commercialized vessels for rent.” Even Assemblywoman Deborah Glick, who in 1991 became the first gay or lesbian member of the legislature, was opposed to the bill for similar reasons.
On the flip side, Risa A. Levine, a member of the board of directors of RESOLVE: The National Infertility Association, told the New York Times that Steinem’s letter “cited outdated policy goals and did not consider the surrogate protections in the revised bill.” Trachtman adds detail, citing RESOLVE data that says of women who offer to be surrogates, only about 5 percent are determined to be medically qualified, “and one of the requirements is that they are financially stable.” Additionally, she says Steinem referenced a 1998 NY Task Force report against surrogacy, rather than a 2017 one that “found that the women who are acting as surrogates are not the marginalized of society, but those not reliant on compensation that may be received from acting as a gestational surrogate.”
I’m certainly sensitive to the danger of treating women as “vessels for rent.” I’ve also heard stories, though, about people who have used surrogates and developed deep and respectful relationships with them. I don’t think banning surrogacy altogether is the answer to the former. Yes, surrogacy needs stringent guidelines, but I believe the bill had those. Trachtman seems hopeful that the bill can pass next year with a greater education effort; let’s hope she’s right. The Protecting Modern Families Coalition, which formed to back the bill, will have a long road ahead.
In Rhode Island
Rhode Island’s parentage statutes were last updated in the 1970s, GLAD tells us. Second-parent adoptions require a six-month waiting period, a home study, a requirement to advertise for anonymous sperm donors, and a lawyer. The Rhode Island Parentage Act, like the New York bill, would have made it easier for parents of any gender, married or not, to establish legal parentage of a child born through assisted reproduction. In Rhode Island, however, it would have established a “Voluntary Acknowledgment of Parentage” (VAP) form, which could be completed at the hospital and allows both parents’ names go on the birth certificate, but also “has the force and effect of a court decree of parentage and should be recognized in all states,” as GLAD Senior Staff Attorney Patience Crozier explained to me. (I wrote at length about these forms, which are being implemented in several states, a few months ago.)
The state Senate passed the bill 35-to-0 on June 6. It was supported by from the Rhode Island Department of Health, Division of Vital Records and the Department of Human Services through the Office of Child Support Services, GLAD said at Uprise RI. When it got to the House, however, Family Court Judge Michael Forte recently expressed concerns with the bill and requested that the House establish a study commission, reports the Providence Journal. Despite testimony from many parents, some with babies in their arms, Forte’s request was apparently enough to halt it for the session. The Journal says that Forte issued a statement noting that the bill was drafted without anyone from the Family Court. He wants a legislative study commission to create “a bill that was easier to read and understand, such as the Vermont bill that was drafted and approved after a similar legislative committee…. We very much need legislation on surrogacy and the creation of modern families.”
True, the Vermont bill, now law, is indeed a good thing. I’m not convinced, however, that the bill that was just stopped really needed further study or tweaking—and the delay will only mean ongoing delays and hardships for those forming their families through assisted reproduction.
A companion bill, which would have made second-parent adoptions themselves easier, was in March also held for further study by the House. (While the VAP would in theory have made second-parent adoptions unnecessary, some couples might still choose to get them, as VAPs are still fairly untested in courts, as several LGBTQ legal experts have explained to me.)
It’s disheartening to have two such bills fail within such a short time frame. Still, I know that advocates in both states aren’t giving up. Onward….
