In the Press
Friday, June 5, 2020How to Keep the United States in the WHO — A Commentary by Harold Hongju Koh and Lawrence O. Gostin Foreign Affairs
Friday, June 5, 2020The Impact of Police Violence on Health WHYY / The Pulse
Thursday, June 4, 2020The Supreme Court, Too, Is on the Brink — A Commentary by Linda Greenhouse ’78 MSL NYTimes.com
Thursday, June 4, 2020Our Allies Watch Ashen-Faced and Weep for This Country — A Commentary by Harold Hongju Koh Foreign Policy
Tuesday, January 23, 2018
Yale Law Faculty Involved in Report to Revoke Surrogacy Ban
A New York State Task Force on Life and the Law that Professor Abbe R. Gluck ’00 serves on has recommended that the State do away with a longtime ban on women serving as paid childbirth surrogates. If enacted, the decision could be influential to other States around the country with similar restrictions in place.
In addition to Gluck serving on the Governor-appointed task force, Yale Law School Professor Douglas NeJaime’s work on surrogacy and parenthood was relied on in a report that outlined the recommendation. Professor Joseph Fins, of Weill Cornell Medical College and a Solomon Center Distinguished Scholar in Medicine, Bioethics and the Law, also sits on the Task Force.
"The majority of the members of the Task Force decided that New Yorkers need to have the legally supported capacity to enter into compensated surrogacy arrangements in their home state with the most supportive legal protections that identify, secure, and protect the surrogate, the intended parents, and the child born through surrogacy," states the report, which was issued in December of 2017. "Those in the majority have found that times have changed, surrogacy has evolved, individuals desiring surrogacy have multiplied, and for intended parents to be forced to seek surrogacy arrangements out-of-state is not reasonable."
The report cites NeJaime's Harvard Law Review paper, "Marriage Equality and the New Parenthood," which outlines why marriage equality is not simply about same-sex couples' right to marry, but premised on the equal status of same-sex couples' families, including the importance of recognizing same-sex parents and their children.
NeJaime, who teaches and writes in the areas of family law, law and sexuality, constitutional law, law and social movements, and legal ethics, said the model of parenthood is not rooted in biological and gendered assumptions about parenting, but instead grounded in principles of intent and function.
"That is, a view of marriage that includes same-sex couples as parents necessarily entails a view of parenthood that focuses on the intent to have children-often through assisted reproductive technologies-and the act of raising children," explained NeJaime. "This model of parenthood protects not only biological but also nonbiological parent-child bonds."
NeJaime argues that the ban places unnecessary obstacles in the paths of many New Yorkers seeking to have children.
"Both different-sex and same-sex couples have turned to assisted reproductive technologies, including gestational surrogacy, to have children," said NeJaime. "Changing New York law in the way the committee has recommended would respect and protect these parents and children."
Professor Gluck was appointed to the prominent task force in 2016. She is the Faculty Director of the Solomon Center for Health Law and Policy at Yale Law School and an expert on Congress and the political process, legislation, federalism, state and local government, civil procedure, and health law.
Established in 1985 by Governor Mario M. Cuomo, the task force consists of 23 Governor-appointed experts who volunteer their time to assist the State in developing public policy on issues arising at the interface of medicine, law, and ethics. The task force has produced reports on bioethics issues, including the withholding and withdrawing of life-sustaining treatment, assisted reproductive technologies, organ transplantation, dietary supplements, assisted suicide, genetic testing, and the allocation of ventilators in an influenza pandemic.