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The proposal to legalize surrogacy in New York was presented as an unequivocal progressive ideal, a remedy to a ban that burdens gay and infertile couples and stigmatizes women who cannot have children on their own.
And yet, as the State Legislature hurtles toward the end of its first Democrat-led session in nearly a decade, the bill’s success is anything but certain.
Long-serving female lawmakers have spoken out against it. Prominent feminists, including Gloria Steinem, have denounced it. Women’s rights scholars have argued that paid surrogacy turns women’s bodies into commodities and is coercive to poor women given the sizable payments it can bring.
With just one week remaining in this year’s legislative session, what supporters have presented as an obvious move — 47 other states permit surrogacy — has turned into an emotional debate about women’s and gay rights, bodily autonomy and New York’s reputation as a progressive leader.
The bill has the support of Gov. Andrew M. Cuomo, and passed the State Senate on Tuesday. But it remains stalled in the Assembly, where several prominent female lawmakers have expressed firm opposition.
Assemblywoman Deborah Glick, who became the first openly gay member of the Legislature in 1991, said surrogacy rights were not the only marker for equality. “I’m not certain that, considering the money involved, that this is an issue for the broader L.G.B.T. community,” she said. “This is clearly a problem for the extraordinarily well-heeled.”
Surrogacy arrangements in the United States can cost anywhere from $20,000 to more than $200,000, according to a report from Columbia Law School.
Ms. Glick added, “It is pregnancy for a fee, and I find that commodification of women troubling.”
But Senator Brad Hoylman, one of the bill’s sponsors, said the legislation showed “the importance of the L.G.B.T.Q. community to the State of New York.”
“I think that’s a mark of progress for our community and a mark of progress for human rights in general,” said Mr. Hoylman, who is the state’s only openly gay senator and has two daughters who were born through surrogacy in California.
The debate over surrogacy rights is relatively new, as it is inherently entwined with advances in reproductive technology. Its roots are in the infamous Baby M case, when Mary Beth Whitehead, a woman in New Jersey, answered a newspaper ad in 1984 to be a surrogate for another couple, Elizabeth and William Stern.
But after Ms. Whitehead gave birth to a girl, known in court papers as Baby M, she changed her mind: She wanted to keep the baby, who was biologically her daughter, as she had used her own egg for the pregnancy. A protracted legal battle ensued, and the New Jersey Supreme Court eventually ruled that surrogacy contracts went against public policy. The Sterns won custody of the baby.
In the wake of that case, some states, including New York, banned surrogacy. But that trend has reversed in recent years. Washington State and New Jersey legalized paid surrogacy last year, joining about a dozen other states. Many other states allow it under certain circumstances or have no laws on the topic, effectively permitting it.
Between 1999 and 2014 in the United States, more than 18,400 infants were born through gestational surrogacy, where the carrier is not related to the fetus. Of those, 10,000 were born after 2010, according to data from the Centers for Disease Control and Prevention.
Yet the opposite has happened internationally. Surrogacy is illegal in most of Europe. And India — where so-called fertility tourism brought in $400 million each year — outlawed commercial surrogacy last year, over worries about exploitation.
That was the concern outlined by Ms. Steinem in a letter to Mr. Cuomo several months ago, opposing the New York bill. In a new message being distributed to lawmakers this week, Ms. Steinem wrote that legalizing surrogacy would put “disenfranchised women at the financial and emotional mercy of wealthier and more privileged individuals” and allow “profiteering from body invasion.”
In a sign of how divisive the issue was, Senator Liz Krueger, one of the most outspoken progressive members of the Legislature, voted against the bill.
“I do understand the issue of having trouble with fertility. I myself couldn’t have children,” Ms. Krueger said on the Senate floor. But, she said, “you’re buying and selling eggs, and you’re renting wombs.”
Under current New York law, paid surrogacy is punishable by a fine. So-called altruistic, or unpaid, surrogacy arrangements are not viewed as criminal, but such agreements are not legally binding or enforceable.
To win over critics, the bill’s sponsors in recent days amended it to include a “Surrogate’s Bill of Rights,” which explicitly states that surrogates would have access to health care and independent legal counsel, paid for by the intended parents, and would have total control over whether to terminate the pregnancy.
Assemblywoman Amy Paulin, the bill’s sponsor in her chamber, said New York would be the only state to enshrine those protections in statute.
“We are going to have the gold standard for surrogates,” she said. “I know that when I go back to some of the members that wanted more protections, they’re going to support the bill.”
In the final days of the legislative session, the debate over the proposal at times turned intensely personal. At a news conference on Tuesday to promote the bill, Mr. Cuomo singled out three female lawmakers in the Assembly, including Ms. Glick, who he said stood in its way.
Ms. Glick, in an interview, called the governor’s statement “incredibly disrespectful.”
“There are definitely people of both genders who’ve expressed uneasiness about the bill,” she said. “I found the governor’s calling out three women leaders incredibly disrespectful — three women who’ve clearly done a lot for this state.”
At the same news conference, Risa A. Levine, a member of the board of directors of the nonprofit group Resolve: The National Infertility Association, said she was “heartbroken” by Ms. Steinem’s opposition, which she said cited outdated policy goals and did not consider the surrogate protections in the revised bill.
“Gloria Steinem was my hero,” she said. “Frankly I’m so disappointed in my hero for getting so many facts wrong, and I really hope that she will reread the legislation.”
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