The ACLU’s Challenge to Michigan’ 1988 Surrogate Parenting Act
In 1988, Michigan became the first state to criminalize surrogacy contracts. This law made participating in a compensated surrogacy contract a misdemeanor punishable by a fine of up to $10,000 and up to one year in prison. Meanwhile, arranging contracts became a felony with penalties of up to five years in prison and a $50,000 fine. Judge John H. Gillis Jr. of the Wayne County Circuit Court agreed to interpret the law to permit surrogacy contracts as long as the contract does not require the surrogate to give up her maternal rights to the child. In response, the Michigan branch of the ACLU filed a lawsuit challenging this Michigan statute on behalf of couples who participated in surrogacy arrangements as well as prospective surrogate carriers. Robert Sedler, Elizabeth Gleicher, and Paul Denenfeld were the attorneys who represented the plaintiffs in this case. In 1992 the Michigan Court of Appeals ruled that the law intended to criminalize surrogacy contracts for women to bear children for infertile people was constitutional. In an interview with Ginanne Brownell and Juliana Stoneback, Ms.Gleicher, now a judge on the Michigan Court of Appeals, spoke about this case and why she felt it was crucial to fight this antiquated legislation.
EXCERPTS:
Brownell: How did you come to work on this case?
Gleicher: At the time I was very active in the ACLU as a volunteer lawyer who handled primarily reproductive rights cases. In fact, I handled almost every reproductive rights case in Michigan for 10 to 15 years. I lost them all; we had a very conservative Supreme Court. When it came to reproductive rights, it was a natural fit [for them] to ask me if I would like to become involved. I saw [surrogacy] perhaps simplistically, and I still see it, perhaps simplistically, as just another facet of women and other people's, now men's, ability to make reproductive rights decisions on their own without governmental interference
Michigan, of course, has a very substantial history with surrogacy. Judge Marianne Battani was the first judge in the world, to rule that the intended parents, and not the surrogate, should be listed on the birth certificate.
It just shows you in some ways the power of judges. I know Marianne very well. And I don't remember the case you just mentioned, I mean, I sort of do, it's very, very fuzzy, but it doesn't surprise me that Marianne, a feminist, and a good judge would reach that decision.
So it sounds like you, Robert Sedler and Paul Denenfeld sort of knew this was not going to go your way but you went ahead anyway.
In many cases that the [Michigan] ACLU brings, whether they be in the reproductive rights arena or another one, the lawyers know that the chances of success are slim. But there are a few reasons that the cases have to be brought. Lawyers who volunteer for the ACLU try to vindicate the rights of people who have no other legal recourse, but an organization like the ACLU, or like a public interest law organization, somebody has to bring the fight to the courts for them, somebody has to speak for them legally. So that's what we wanted to do. I mean, now and I guess this is with the benefit of A) time B) age and C) being a judge, I understand that there's a historic component to what we do as well. I mean, we have to tell it, we have to make it clear for history that somebody stood up for that, that somebody protested, there was an active opposition to what was going on. There has to be evidence. That's what we created I think.
Has anyone been prosecuted under the 1988 law that you know of?
I've never heard of a prosecution. But I have heard of so many complications. For example, I wrote an opinion recently tangentially involving surrogacy. No one was prosecuted, in that case, but the complications that ensued from Michigan surrogacy law were substantial for that couple. The people who use surrogacy are usually educated, as I pointed out in my concurring opinion, financially able to use surrogacy, and they're not going to put themselves in line for prosecution. But that's not to say that there aren't serious consequences that befall people in Michigan trying to avoid the draconian effects of a stupid law. And we know it's stupid, because we're the only state that has it.
Tammy and Jordan Myers, a Grand Rapids couple, are in the process of adopting their biological twins because a judge ruled—against what Judge Battani ruled way back in 1986 but sticking to the 1992 Court of Appeals ruling—that legally they were the children of the gestational carrier.
Thinking about the Doe case, if it were presented today, to a Michigan Court of Appeals panel, would the result be the same? I'm not sure. There has been a change in the way judges think about these issues. I doubt that the court could leave its analysis with the baby selling rap, because we've seen that that hasn’t caused a revolution in baby selling and commodification of babies around the country. What has happened is that a lot of beautiful families have been created. And that's the evidence not, the wholesale destruction of the American family. I think that there would very possibly be a different result today.
Why didn’t you take the case any further, to the Michigan Supreme Court?
I think we didn't appeal because we knew we would lose. You know at that time, we had lost the reproductive rights cases. So we had a Supreme Court that was not very sympathetic to any of these issues. So why bother?