A Call for Change in Michigan’s Anti-Surrogacy Law

Magy Shenouda, Senior Production Editor (‘21)

Tammy Myers of Grand Rapids, Michigan was thirty-three years old when she was diagnosed with breast cancer.[1] The diagnosis came as a shock because she and her husband, Jordan, were hoping to be pregnant with their second child.[2] Over twenty-five surgeries, twenty-eight rounds of radiation, and eighteen rounds of chemotherapy later, Tammy and Jordan decided to go the surrogacy route.[3] In January 2021, Tammy and Jordan’s surrogate gave birth to their twins.[4] Despite their surrogate’s full cooperation, the couple have been unsuccessful in gaining legal custody of their children and must go through a long and expensive adoption process due to Michigan’s outdated surrogacy laws.[5]

I. Overview of Surrogacy Law in Michigan

The case that became the root of Michigan’s surrogacy law was In re Baby M.[6] The famous case concerned a surrogacy contract in which a New Jersey woman, Mary Beth Whitehead, had agreed to be a surrogate for The Sterns, as Mrs. Stern was unable to carry a child due to her multiple sclerosis.[7] Whitehead agreed to become inseminated with Mr. Stern’s sperm and carry the pregnancy to term in exchange for $10,000, which would equate to about $22,000 today.[8] After the birth of Baby M, Whitehead had a change of heart and decided to keep the child.[9] The New Jersey Supreme Court granted parental rights to Whitehead, labeling compensated surrogacy as “illegal, perhaps criminal, and potentially degrading to women,” and equating compensated surrogacy with selling babies.[10] At the time, the only common method of surrogacy was the traditional one, where the surrogate is the child’s genetic mother due to sperm insemination instead of a “pre-combined” embryo.[11] The court viewed compensated surrogacy as coercive to the mother because it forced her to agree to give up her child before conception, and before experiencing pregnancy and childbirth.[12] As a result of the famous case, Michigan adopted the Surrogate Parenting Act in the same year.

The Michigan Legislature passed the Surrogate Parenting Act “to establish surrogate parentage contracts as contrary to public policy and void.”[13] The Act also prohibits non-altruistic surrogacy, making compensated surrogacy a felony punishable by up to $50,000 in fines or up to five years imprisonment, or both.[14] Michigan and Louisiana currently stand as the only states where paid gestational surrogacy is criminal and surrogacy contracts are unenforceable.[15] New York was the last state to repeal its criminal surrogacy laws in 2021, following Washington, the District of Columbia, and New Jersey.[16] Meanwhile, Michigan has no legislative action to update its law on the horizon.

The Surrogate Parenting Act was aimed at traditional surrogacy, in which the surrogate serves as both the egg donor and the carrier, and thus maintains a genetic relationship to the baby. It did not, nor was it designed to, address gestational surrogacy, where the embryo is not genetically related to the carrier.[17] Yet, the Act applies to both types of surrogacy without regard to the differences between them. In gestational surrogacy cases, Michigan law considers the surrogate to be the child’s birth mother and her husband/partner as the birth father, despite their lack of any genetic relationship to the baby.[18] Thus, the baby’s genetic parents are forced to go through the legal adoption process to become the child’s legal parents, despite being the child’s biological parents.[19]

In addition to being very expensive, the adoption process is long and involves adoption agencies and Children’s Protective Services investigating the parents and making a determination as to their fitness for custody.[20] This process effectively penalizes mothers who are unable to carry a child because women who can have children naturally are not required to pay to adopt their own children nor have their aptitude for parenthood assessed by third parties. Although some judges recognize the absurdity of the Surrogate Parenting Act and grant pre-birth adoption orders to the parents, many judges believe the legislature must first change the law before parents can bypass the adoption process.[21]

II. The Detrimental Effects of Michigan’s Current Surrogacy Law

The current state of Michigan’s surrogacy laws leaves whether parents gain immediate custody and parental rights to their children upon birth dependent on the whim of the judge in charge of their case. This creates a lot of uncertainty, which may discourage many prospective parents and surrogates from pursuing surrogacy. Furthermore, Michigan’s lack of recognition of surrogacy contracts can have atrocious implications in cases where a dispute arises between the surrogate and the parent(s). Additionally, the notion brought forth in In re Baby M, that women who pursue compensated surrogacy only do so out of desperation or that they underestimate the distress of giving up a child advances misogynistic thinking.

            A. Lack of Legal Recourse for Dispute Resolution

In states where the law recognizes gestational surrogacy contracts, the parties involved can settle their disputes in court and in accordance with their mutually agreed-upon contract. For example, if a gestational surrogate in California decides to breach her contract with the parent(s) by attempting to keep the child, a California court would not allow that attempt and would uphold the terms of the contract.[22] Or, if the parent(s) agree to compensate their surrogate but later fail to make the agreed-upon payments, the surrogate would be able to sue for breach of contract and receive compensation.[23] If either scenario or any other dispute between surrogates and parent(s) takes place in Michigan, the parties are left with no legal recourse because their contract is considered unenforceable and criminal by Michigan law.[24] This means that a gestational surrogate can decide to keep a child that is not genetically hers and Michigan law would be on her side.[25] It also means that parent(s) are free to break their promises to their surrogate with no legal consequences.[26]

            B. Scarcity of Altruistic Surrogates

Pregnancy and childbirth are mentally, emotionally, and physically draining experiences. The odds of finding women who are willing to go through the adversities of surrogacy for no compensation are slim.[27] In states where surrogacy is legal, surrogates are commonly compensated over $50,000 per pregnancy.[28] Additionally, the surrogacy industry is typically governed by set and enforced medical and legal guidelines.[29] There are reputable agencies to match surrogates with parents and to assist both parties throughout the process.[30] Without compensation or set guidelines as insurance, women are less likely to become surrogates in Michigan when they can receive a salary for it elsewhere.

            C. Fostering A Misogynistic Outlook

The notion that paid surrogacy is degrading to women because surrogates may not fully understand what they are “getting themselves into” has misogynist roots.[31] In states where surrogacy is legally recognized, physicians and surrogates are required to follow stringent guidelines that require background checks, physical and psychological screenings, and conversations on informed consent.[32] There is little to no persuasive evidence to show that surrogates tend to underestimate the distress associated with giving up a child to the extent of regretting surrogacy altogether.[33] In fact, the vast majority of surrogacy experiences go smoothly and are free of objections from the surrogate as to surrendering the child.[34] Above all, women are perfectly capable of understanding the tolls of pregnancy and childbirth. To assume otherwise is prejudicial. There is also no basis to assume that women who serve as altruistic surrogates have a better understanding of surrogacy than those who do it in exchange for compensation.

III. Potential Benefits of Legalization

A change in the law would allow parents in Tammy and Jordan Myers’ position to gain immediate custody of their children upon birth and spare them a long and expensive adoption process. In addition, all parties to a surrogacy would benefit from the legalization of compensated surrogacy in Michigan.[35] A change in the law would create a legal avenue for dispute resolution, giving both parties peace of mind during an already difficult process. Importantly, paid gestational surrogacy would create employment opportunities for potential surrogates.[36] Due to the effects of the Coronavirus on Michigan’s economy, women’s participation in the labor force fell by 6% in 2020, whereas men’s participation fell by less than 1%, and many predict that the worst is yet to come.[37] Paid surrogacy would allow many women a window into Michigan’s workforce. Further, employment opportunities would not be limited to potential surrogates, or even just women. Surrogacy agencies will begin to form. Fertility clinics will see a rise in business, and law offices that choose to draft surrogacy agreements and represent parties to a surrogacy will grow. This change will also result in added taxable income for the State of Michigan. Most importantly, decriminalizing paid surrogacy would allow many who struggle with infertility or conditions prohibitive of pregnancy to start and grow their families.

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[1] See Beth Dalbey, Parents Must Adopt Biological Twins Under State Surrogacy Law, Patch (Jan. 25, 2021, 5:56 PM), https://patch.com/michigan/grand-rapids/michigan-parents-must-adopt-biological-twins-under-surrogacy-law.

[2] See id.

[3] See id.

[4] See id.

[5] See id.

[6] See generally 537 A.2d 1227 (N.J. 1988). See Richard A. Posner, The Ethics and Economics of Enforcing Contracts of Surrogate Motherhood, 5 J. Contemp. Health L. & Pol’y 21, 21 (1989).

[7] See Clyde Haberman, Baby M and the Question of Surrogate Motherhood, N.Y. Times (Mar. 23, 2014), https://www.nytimes.com/2014/03/24/us/baby-m-and-the-question-of-surrogate-motherhood.html.

[8] See id.

[9] See id.

[10] See In re Baby M, 537 A.2d at 1234.

[11] See generally Posner, supra note 6.

[12] See generally In re Baby M, 537 A.2d at 1240.

[13] See Surrogate Parenting Act, Mich. Comp. Laws § 722.851 (1998).

[14] See id. § 722.859.

[15] See Ellen Trachman, Michigan’s ‘Safe Haven’ Surrogacy Laws Are a Problem for the Entire Country, Above the Law (Aug. 12, 2020, 1:49 PM) https://abovethelaw.com/2020/08/michigans-safe-haven-surrogacy-laws-are-a-problem-for-the-entire-country/.

[16] See id.

[17] See About Surrogacy: What Is Altruistic Surrogacy?, Surrogate.com, https://surrogate.com/about-surrogacy/types-of-surrogacy/what-is-altruistic-surrogacy/ (last visited Feb. 10, 2021).

[18] See Susan Samples, Michigan the ‘Worst’ for Couples Seeking Surrogacy, WOOD TV8 (Nov. 20, 2019, 4:53 PM) https://www.woodtv.com/news/target-8/michigan-the-worst-for-couples-seeking-surrogacy/.

[19] See Dalbey, supra note 1.

[20] See Samples, supra note 18 (explaining that the adoption process can cost around $18,000).

[21] See Dalbey, supra note 1.

[22] See Alex Finkelstein, et al., Surrogacy Law and Policy in the U.S.: A National Conversation Informed by Global Lawmaking 22 (2016).

[23] See id.

[24] See Posner, supra note 6, at 23 (explaining that where surrogacy contracts are unenforceable, the parents “have no assurance that they will actually obtain a baby as a result of the contract even if the surrogate becomes pregnant” and that the surrogate’s right to compensation is also unprotected).

[25] See id.

[26] See id.

[27] See About Surrogacy, supra note 17 (“Most altruistic surrogates are close friends or family members of their intended parents. Intended parents who are not pursuing identified surrogacy are not likely to find a match with an altruistic surrogate through an agency’s matching services.”).

[28] See Surrogate Compensation at West Coast Surrogacy, W. Coast Surrogacy, https://www.westcoastsurrogacy.com/become-a-surrogate-mother/surrogate-mother-compensation (last visited Feb. 10, 2021) (showing a breakdown of compensation and expenses for surrogacy). For example, surrogates are compensated an extra “multiples fee” in cases of twins or triplets. See id. They also receive extra compensation if they have to go through a cesarean section birth. See id. An experienced surrogate’s base pay is $60,000 instead of $50,000. See id.

[29] See Ali Rosen, Surrogacy is Misunderstood and Unfairly Maligned. We Need to Change the Narrative, Wash. Post (Jan. 24, 2020, 9:00 AM), https://www.washingtonpost.com/lifestyle/2020/01/24/surrogacy-is-misunderstood-unfairly-maligned-we-need-change-narrative/.

[30] See Pros and Cons of Altruistic Surrogacy, ConceiveAbilities, https://www.conceiveabilities.com/about/blog/pros-and-cons-of-altruistic-surrogacy (last visited Feb. 10, 2021).

[31] See Rosen, supra note 23; see also Posner, supra note 6, at 24 (noting that “[t]he most frequent argument one hears against contracts of surrogate motherhood is that they are not truly voluntary, because the surrogate mother doesn’t know what she is getting into and would not sign such a contract unless she was desperate”).

[32] See Family Building Through Gestational Surrogacy, Am. Coll. Obstetricians & Gynecologists, https://www.acog.org/clinical/clinical-guidance/committee-opinion/articles/2016/03/family-building-through-gestational-surrogacy (last visited Feb. 10, 2021).

[33] See Posner, supra note 6.

[34] See id.

[35] See Rosen, supra note 24.

[36] See id.

[37] See Nushrat Rahman, As Women Leave Pandemic Economy, Returning to Work, Higher Wages Will Be a Struggle, Det. Free Press (Nov. 23, 2020, 6:01 AM), https://www.freep.com/story/news/local/michigan/2020/11/23/covid-19-women-struggle-pandemic-economy-recession/6249476002/.