An Outdated Law
In a case that shines a light on Michigan’s antiquated surrogate parenting law, a couple in Grand Rapids has been ordered to endure the process of adopting their own biological newborn twins. And while the couple in question is straight, the situation has far-reaching implications for all couples and individuals who wish to expand their families via compensated gestational surrogacy, which remains illegal in Michigan. To be clear, Michigan is an outlier: by mid-February when New York updates its statute, Louisiana will remain the only state other than Michigan with similarly draconian surrogacy laws. In that state, LGBTQ couples are barred from entering into surrogacy contracts entirely.
Tammy and Jordan Myers, parents of an 8-year-old, wished to have more children. As a breast cancer survivor anticipating this possibility, Tammy Myers had some of her eggs frozen before a planned operation to remove her uterus. The Myerses located a married woman with children who offered to be a “compassionate surrogate,” meaning that she would carry their biological child conceived through in vitro fertilization—Tammy Myers’ egg, Jordan Myers’ sperm—without compensation. As part of the legal process, Tammy and Jordan Myers sought a pre-birth order from a circuit court judge in Kent County in January to establish parenting rights of their genetic children. That’s where the trouble began.
Pointing to a decades-old statute, now-retired Kent County Circuit Court Judge Daniel Zemaitis stated the following:
“While this Court has genuine concerns about the present-day wisdom of the 1988 Surrogate Parenting Act, such concerns are better left to the legislative/political arena. This Court will not ignore by judicial action the clear language of (the law).”
As a less satisfactory alternative, Jordan Myers sought to establish parenting rights under the Paternity Act. This too was denied despite the fact that the surrogate and her husband make no claim to the children, who were born prematurely and are in the neonatal intensive care unit. No one is disputing that the Meyerses are the twins’ parents; however, the court has ruled that a traditional adoption—involving background checks and home visits—must take place.
Between The Lines consulted with Victoria Ferrara, an attorney and international expert on surrogacy law who is herself openly gay and a mother. Ferrara heads the agency Worldwide Surrogacy, where she specializes in family formation through gestational surrogacy for couples and singles, both gay and straight.
Why Such Strict Laws?
It all began in Michigan.
In the early 1980s, commercial surrogacy was relatively new and had grown out the emerging field of assisted reproductive technologies: IVF opened up exciting new possibilities for prospective parents. Dearborn attorney Noel Keane became something of the father of modern legal surrogacy, as he helped countless couples expand their families. Keane was celebrated as a hero by many and called a villain by others who considered surrogacy exploitative.
Many will recall the so-called ‘Baby M’ case of the mid-1980s, in which Mary Beth Whitehead, a traditional surrogate using her own egg, refused to give up parenting rights upon the birth of the child. In the end, Whitehead lost custody and later sued Keane.
That lead to the 1988 Surrogate Parenting Act, in which Michigan became the first state to make paid surrogacy a felony. Introduced by Sen. Connie Binsfield and signed into law by Gov. James Blanchard, it was explicitly designed to put Keane out of business. It did not. Other states followed suit, but as reproductive technologies have advanced, gestational surrogacy has become more common, and attorneys who specialize in this area have learned best practices, Michigan’s state law has not kept pace.
Ferrara explained a critical difference between the circumstances that led to the 1988 Surrogate Parenting Act and the present landscape of surrogacy is this country.
“That case created a lot of controversy,” Ferrara noted, of Whitehead. “But I think it’s important to make a distinction between traditional surrogacy and gestational surrogacy. Mary Beth Whitehead was a traditional surrogate. She carried her own genetic baby … and no one could take that baby away from her unless she agreed, after the fact of the birth.
“So, the thing about gestational surrogacy is people are coming together for the purpose of a woman carrying a non-genetic baby for another couple,” she continued. “And most of the time, people ask me, ‘Will they want to keep my baby?’ We say, ‘No, as a matter of fact, she wants to make sure you’re going to take your baby.’ So gestational surrogacy is so different all the way around than traditional surrogacy.”
Here is a brief timeline: In 1978, the first baby was conceived via IVF. Gestational surrogacy wouldn’t be successful until 1985. Slowly, gestational surrogacy has become more common: the number of gestational carrier cycles increased from 727 in 1999 to 3,432 in 2013, according to the CDC.
Ferrara said she’s disappointed with what happened in Kent County and hopes the notoriety and press will help bring awareness and lead to lobbying efforts intended to change the law.
“I think in this case, what’s really sad is that the parents are the biological genetic parents, and everyone is on the same page: the surrogate, her husband, the two parents — and so I think the court came up with the wrong result. An unjust result. And actually, they had some precedent in Michigan to come up with a different result. My understanding is that … there have been cases in Michigan allowing parents to become the legal parents of their babies in surrogacy arrangements.”
A Judge’s Perspective
Oakland County Circuit Court Judge Jacob Cunningham, who works in the family division and who is also openly gay, is one such judge who has set precedent by signing pre-birth orders to establish genetic parents as legal parents when an uncompensated gestational surrogate has carried the child or children.
Cunningham, who said he was unable to speak to the merits of the Kent County case or any pending case specifically, did explain in general terms how it looks from his side of the bench when he signs such orders.
To be clear, though, “the statute prevents a contract for surrogacy, full stop,” Cunningham said. “And that’s 100 percent, good law, on the books.”
However, a case can be filed in the family division with a code indicating “other,” which requires a hearing before a pre-birth order can be signed.
Cunningham explained the point of the hearing is to demonstrate two things. First, for the Court to ensure there must be no paid surrogacy contract in play that would run afoul of the current statute. In addition, the Court must verify neither the gestational surrogate nor her married spouse or significant other, if there is one, may be genetically related to the baby. This requires testimony under oath or sworn affidavits by all parties involved. Cunningham added that treating physicians also can provide affidavits that may be helpful to the Court.
“Let’s be honest,” Cunningham said. “That statute was on the books decades ago, and there’s that phrase that sometimes the law is slow to catch up to the times or the technology. Back in the ‘80s when that statute was enacted, we didn’t have the strides in in vitro [fertilization].
“I know a lot of family judges, myself included, that would be thrilled to see change [in this very gray area] so that we can make sure that we have a guiding principle in the law, because our job is to follow the law as written and apply it,” Cunningham continued.
He then spoke of the benefit of having a law that would address the modern realities of surrogacy and IVF that would be uniform across all of Michigan’s 83 counties.
That’s where State Sen. Winnie Brinks comes in.
Brinks is a Democrat who represents Kent County. She agrees with Ferrara and Cunningham that Michigan’s law has not kept up with advances in medicine and that should be to addressed by lawmakers.
“I think what’s become pretty clear to me is that judges are looking for clarity,” Brinks said. “And so, to the extent that that is the job of the Legislature, I think that we owe it to our constituents, and to, quite frankly, all of those judges who are deciding these kinds of cases, to take a look at this and see if we can provide a better guide for them.”
Brinks believes that surrogacy contracts should be legal in Michigan—like nearly every other state.
“At a basic level, it seems that surrogacy contracts should be allowed and there should be safeguards for all parties, and it should be some respecter of biological parentage,” Brinks said. “There are some pretty deep questions here for a lot of folks, but I think if there’s a way to make it possible for us to serve those families or provide some legal guidance for those families who want to engage in surrogacy with some appropriate safeguards, I think that it would be a real service to the people of Michigan.”
Brinks also said she’s looking for partners in the Legislature to potentially help advocate for those changes.
There is no piece of legislation yet. However, Brinks said it is “in the works” and individuals may wish to contact their representatives and urge them to support a resolution for those families affected.
Ferrara, the surrogacy attorney, made clear that surrogacy is here to stay.
“Not coming along with the way the laws are evolving doesn’t deter surrogacy,” she said. “It’s a matter of all of use working in the area of surrogacy to come up with ethical laws and ethical processes that will protect everyone. And that’s completely possible.”