A former Michigan governor explains the “Why?”: James Blanchard on signing the 1988 Surrogate Parenting Act into law

How and why?

Those two interrogative words are by far the most common ones that come up when we discuss the antiquated 1988 Surrogate Parenting Act with advocates, lawmakers, journalists, intended parents, surrogates, lobbyists, lawyers and academics. First there is disbelief that this law is still in place—”Wait, it’s still a felony in Michigan to participate in a surrogacy contract?” — and then a rat-tat-tat of questions: How did this law come about?  Why was it signed into law? How is this still the law on the books? Why did the legislature take it up in the first place? 

These all seem like very rational and sober questions to ask to our 21st century selves—especially as no one bats an eye much anymore over assisted reproduction like IVF. But back in 1988—34 years ago at this point—IVF, surrogacy and even conversations around infertility were not widely discusssed. That was because it was all new—the first IVF baby, Louise Brown, was only a decade old at the time and surrogacy had taken a recent bashing in the press over the Baby M case. 

And, of course, it’s important to remember that the vast majority of surrogacies at that point were traditional, meaning that the carrier was also the egg donor (as was the case with Mary Beth Whitehead, the New Jersey surrogate in the Baby M case who fled to Florida with the baby). Only two years before in 1986, Jill Rudzinsky had been born in Michigan. She was the first baby in the world born via a gestational carrier, meaning that she was not the genetic child of the surrogate who gave birth to her. But Jill and the handful of other babies born via gestational carriers during those few years were the exceptions not the rule in surrogacy. Meanwhile these days, the Centers for Disease Control estimate that 95% of surrogacy births in the U.S. are via gestational carrier. So those percentages have flipped completely. 

In the mid-to-late 1980s surrogacy was seen as something new, strange and even dystopian. And Noel Keane, the late Dearborn, Michigan-based attorney who not only created the first compensated surrogacy contract in the United States (and maybe the world) in 1976 but also did contracts between Mary Beth Whitehead and the Starks, as well as Jill’s parents with their carrier, was persona non grata with accusations that he essentially was in the business of selling babies. My former Newsweek colleague Barbara Kantrowitz wrote a cover story for the magazine on the Baby M case when the New Jersey Superior Court battle first began in 1987. “A lot of it was a class issue,” she told me, recalling that there was much reluctance by the editors to even do the story. “I remember what concerned me the most, and I hope I got that out in the story, was ‘Are we headed for a future where rich women pay poor women to have their babies?’ It felt like science fiction.” 

In those early days of surrogacy, radical feminists argued that surrogacy commodified the womb and exploited women based on their reproductive capabilities. They warned that women of color and poor women would be taken advantage of by wealthy white heterosexual couples desperate to have a child. “What we learn from experience today is that a lot of surrogates are white and tend to be lower middle class, so empirically this has not held true,” says Cornell University law professor Sital Kalantry, who has written extensively on surrogacy in both the US and India.

It was the late Michigan Republican senator Connie Binsfeld, who went on to become Lieutenant Governor, who first proposed the 1988 law. “She spent most of her time in the legislator dealing with children's issues, she was kind of like the children's advocate,” said Bill Kandler, a long time Lansing lobbyist. At the time there was a lot of talk around the lack of any legislation covering issues related to surrogacy, and how the Baby M case had really opened up a lot of legal and ethical cans of worms around not only surrogacy specifically but the ethics of fertility treatments in general. “Hardly anybody knew what IVF was so [surrogacy] was really out there for people,” said Mr. Kandler, who also for a time served as Governor James Blanchard’s director of legislative affairs. “People were saying, ‘You are kidding me? You can pay people to have a baby?’ There was probably some individual who testified against the bill. But overall people were like ‘Obviously we want to fix this, it's a disaster.’”  

Governor Blanchard, who as Michigan governor from 1983 to 1991 signed the 1988 bill into law, remembered just how controversial surrogacy was at the time. “Noel Keane was making money off of charging [people] to arrange a surrogate,” he told me recently in a phone interview. “It was relatively new and got everybody upset.” He added that the debate in the state at that time was very much one sided.  “I don’t recall anybody lobbying me on it,” he said.  “I don’t recall any letter writing. I don't remember any controversy over passing the bill or signing the bill or whether they should have a bill. I remember the controversy was all over Noel and making money off this.” (Governor Blanchard, who went on to be appointed the Ambassador to Canada by President Clinton, told me that he even had friends who years later worked with a surrogate, though he did not say where they lived or where their surrogate was based. “And they had two kids and so they're quite happy about it,” he said. “So obviously, it's been relatively popular since.”)

In the end the “Why and how?” behind the law was done to stop just one man from profiting off of surrogacy contracts. Interestingly, this seems to have been something of a trend with lawmakers in Michigan in the late 1980s and early 1990s: creating legislation to dissuade individuals from taking advantage of loopholes where there was no law. “This law was aimed at Noel Keane doing surrogate [contracts] in Michigan [just as] the legislature passed the 1993 law that was aimed to stop Dr. Jack Kevorkian from doing doctor-assisted suicide in the state,” said Robert A. Sedler, a retired Wayne University law professor who also was one of three lawyers back in 1992 who took the state to the Michigan Court of Appeals over the surrogate law. The roll call vote was 30 yeas, six nays, two excused and one not voting. (I was pleased to see my state senator at the time—also a family friend—was one of the six nays).

So with our sober and rational 21st century eyes, it seems dystopian and perplexing that participating in a surrogacy contract —either compensated or otherwise— could get you not only a hefty fine but even jail time. A law created to stop one man from pursuing traditional surrogacy contracts is instead stopping thousands of Michigan couples from having their own genetic children through gestational surrogacy, which has been proven to be a widely accepted treatment option from groups including the American Society of Reproductive Medicine. Surrogacy is recognized in 49 other states (to varying degrees) as safe, effective and regulated, all the while not preying on poor or disadvantaged women. Good law puts safeguards in place that require psychological and medical approval for carriers. And that’s best practice for everyone’s sake.

—Written by MFA’s communications consultant Ginanne Brownell, some of this essay comes from her forthcoming book, “How I Became Your Mother: A Global Surrogacy Journey.”