Our Bun, Her Oven: One state, two conflicting judicial opinions
Aubrey Gojcaj, who lives in suburban Detroit, was unable to have any more children after her daughter Iris—conceived through IVF— was born in 2018 because of afterbirth pregnancy complications requiring a caesarean hysterectomy. With two embryos left, Aubrey and her husband Pete decided to look into surrogacy. Both their first and second potential carriers had to back out last minute because of personal issues. Heartbroken, Aubrey met her sister, Sarah, for a playdate in the park with their children a few days after the second potential surrogate had had to cancel the embryo transfer. While Aubrey thought she would be commiserating with her sister, in the end Sarah told Aubrey she wanted to be her surrogate. Though their first attempt did not take, Sarah is now pregnant with a girl who is expected to be born in the beginning of next year
Right before Thanksgiving, the couple got the great news they had been waiting for - a judge ruled they would not have to adopt their own baby. In surrogacy lingo, they were granted a pre-birth order, something Michigan law does not guarantee. This, of course, is in direct contrast to what happened to Tammy and Jordan Myers, a Grand Rapids couple who, because of a judge's ruling, are being forced to adopt their biological twins born via a gestational carrier. These two opposing rulings highlight how uniquely confusing and gray the surrogacy law is in the Great Lakes state. Michigan's Surrogate Parenting Act, Act 199 of 1988 criminalizes a surrogacy contract (the only state in the U.S. that does so). It ties the hands of professionals who can assist, limits access to gestational carrier surrogacy and the law is unclear regarding the rights of parents, surrogates and the children born through the gestational carrier surrogacy process. Ginanne Brownell spoke with Aubrey about how she came to surrogacy and why she became an advocate for changing the law (Both Aubrey and Ginanne are members of the MFA’s leadership committee). Excerpts:
Brownell: What did you know about surrogacy before you started looking into it?
Gojcaj: Almost nothing. I knew the science behind it but that was just about it. I had started with calling our fertility clinic and asking them questions, taking their guidance. And I was shocked. They were like, "Okay, this is the lawyer you're going to need to call and this is where you need to start." So I called and lawyer and she said, “Well, you're going to want to start with finding an insurance plan, because a lot of these insurance plans are going to have exclusions for surrogates." And it's like, why? Well, because insurance companies don't want to pay anything. And that's a little way that they can get out of paying more bills. It’s so crazy because if a surrogate gets pregnant naturally, they cover her pregnancy. But she's doing this the most selfless act in the entire universe and [insurance companies] are saying, "We are not going pay.”
Once you were armed with that information, what was the next step?
The lawyer really gave me a lot of guidance on where to go starting to look for insurance. And she told me that you can't compensate. And I had my whole binder together of all my information, everything I had learned. We did have one woman who came to me but in the end she wasn't able to do it. So [the idea] kind of just sat on the backburner for a while. We kept renewing the yearly fee for the embryos. Pete wanted to keep them. And I got to the point where I just needed closure either way.
Did you ever ask Sarah outright to be your surrogate?
She had a kid six weeks before I had Iris. She had two children of her own. Her husband owns a business. So he's busy, works a lot of hours. She didn't like being pregnant, didn't have easy pregnancies, both were C-sections. I never ever blamed her for not wanting to be my surrogate. I respect that. And she didn't want to and I knew that and that was okay. So then another woman stepped in but right before the transfer she also decided not to do it for personal reasons. This was on a Wednesday and Friday, I took Iris to my parents’ house. My sister was there with her kids, we took them to the park. And I was just talking about it, being so disheartened. And my sister's like, “Well, you know what, it's okay that this happened because I want to be your surrogate.” It was such an emotional roller coaster getting here. So while I was excited, I was also cautiously optimistic. And I went home and told Pete and he was cutting the grass. He just started sobbing.
So how did things progress from there?
Our first transfer did not take. That obviously heart-breaking because then we only had one left. We had decided to do the transfers separately because our fear was if we implant them both together, and it doesn't take, that’s it. But the second one took and we were thrilled when we finally got the results.
After that initial excitement, however, often comes the reality of, “Oh boy, now we have all this paperwork and logistics.” How was that?
It didn't deter me from wanting to go through the process. We knew that there is no compensation allowed in Michigan but there is still cost involved. I guess a majority of my frustration came with how do you budget for potentially needing to adopt your children back? Where do you start? I think so far we've already spent $50,000 on the surrogacy journey with my sister [in terms of the transfers and health care bills] and now she's having the baby at the end of January so we have to pay for the insurance.
You found out recently that you would not have to adopt your own child because you received a pre-birth order that will list you and Pete as the baby’s parents on the birth certificate.
We were elated. Because we were trying to budget and put to the side another $30,000 to $40,000, which is what our lawyer said it we would be looking at approximately for that process. So like how do you plan for that? I very much a planner, I do not like things just left to figure out along the way. I like to know the information. Then it's like the fact that you guys won't allow this contract to be brought into court is causing me and everybody in this situation such turmoil. It was infuriating.
You started a petition on change.org to update the surrogacy law in Michigan. How did you connect with MFA, which has been working on exactly that?
I started Googling and there were no other petitions for Michigan surrogacy law. And I thought, “All you women out here that have gone through it, nobody has thought, “let's start a petition?” So I was even more infuriated. I started looking up Michigan surrogacy groups, literally anything I could join. And Stephanie Jones [MFA’s founder] ended up messaging me on Facebook. And she said, “I saw your petition, I'm hearing your frustration and you're the exact type of person that we want to join us. This is what we need, somebody like you that's over here, rattling cages.” I was so desperate for somebody to feel my pain and be vocal with me. So when she called me we talked for over an hour. And I was so relieved. After I got off the phone with her I felt so happy and such a sense of peace because all of a sudden, I wasn't alone anymore. Somebody understood. A roomful of women and men that understood this fight. And so I joined up immediately.