Surrogacy in Michigan: Five Legal Cases You Should Know

For many couples who use surrogacy to expand their family, it can be a path fraught with emotional and financial hardship. And even once a child is born, many Michigan couples face another potentially grueling challenge: the battle for parental rights.

One of the most publicized legal battles related to surrogacy in Michigan occurred in the beginning days of 2021. After Tammy Myers of Grand Rapids was diagnosed with cancer and was told she had to undergo a partial hysterectomy, Ms. Myers chose to freeze her eggs so that she and her husband, Jordan, could still have children at a later date via surrogacy.  The couple found a gestational surrogate, Lauren Vermilye, also from Grand Rapids, and their embryo transfer was successful. Ms. Vermilye carried and gave birth to the couple’s biological children, twins Ellison and Eames, on January 11, 2021. 

However, the family were unable to leave the hospital together. Under Michigan state law, the couple weren’t recognized as the twins’ parents, because all surrogacy contracts  are null and void in the eyes of the state. Instead, Ms.  Vermilye and her husband were declared the twins’ legal parents, though neither have any biological relation to the children and filed multiple affidavits making that fact clear.

Michigan state courts, however, tend to follow the Roman law principle mater semper certa est (“the mother is always certain”), which grants parental rights to the woman who carried the children, regardless of biological connection. This left Tammy and Jordan with only one option: to undergo the lengthy and complex process of adopting their own biological children. (It is important to note that this is standard practice for most European countries, including the U.K. where parents of children born through surrogacy must obtain a parental order because “If you use a surrogate, they will be the child’s legal parent at birth.”)

The Myers case echoes other historic cases in the state over the decades. 

Back in 1988, a Michigan court ruled, like in the Myers’ case, that Laurie Yates—who was a traditional surrogate meaning she was also the egg donor— and her husband of Ithaca, Michigan, were the legal parents of the twins that she had carried for Jonesboro, Arkansas couple Barry and Glinda Huber. Before the twins’ birth, all parties had agreed that the Hubers were the intended parents through a legal contract written by Dearborn, Michigan lawyer Noel Keane.

A legal battle for permanent custody ensued, but in the meantime, the newborn twins—Stephanie and Anthony—were transferred between the Hubers’ and the Yates’ care every two weeks. This type of upheaval, especially at such a formative time in the babies’ lives, causes immeasurable emotional turmoil and anxiety for all parties.

The all-too-common theme of battling for parental rights and child custody has repeated itself in the case of another Grand Rapids couple Amy and Scott Kehoe. Due to their struggle with infertility, the Kehoes used an egg donor, sperm donor and a surrogate to carry their twins, Ethan and Bridget. While the Kehoes were able to take their children home from the University Hospital in Ann Arbor after their birth in 2009, they were ordered by police to relinquish their custody a month later.

The Kehoe's surrogate, Laschell Baker of Ypsilanti, filed a court order to obtain custody of the twins after she learned that Ms. Kehoe was being treated for mental illness. Because Michigan law did not uphold the surrogacy contract between the Kehoes and Ms. Baker, regardless of their agreement on child custody, all parties were forced to battle the case in court. Ms. Baker won custody of the twins. 

Michigan surrogacy law made a name for itself in another recent highly publicized case. In 2012, a Connecticut couple struggling with infertility worked with Crystal Kelley, also from Connecticut, as their gestational surrogate. The amicable relationship between the couple and Ms. Kelley grew tense when 21 weeks into the pregnancy an ultrasound revealed severe congenital defects. While the contract between Ms. Kelley and the intended parents clarified that she would have an abortion in the case of severe fetus abnormality, Ms. Kelley ultimately refused to terminate the pregnancy.

Because Connecticut law recognizes the biological parents as the legal parents in surrogacy cases, the couple indicated they planned to obtain custody of their daughter and surrender her to the state under Connecticut’s Safe Havens Act for Newborns. Faced with this possibility, Ms. Kelley chose to flee to Ann Arbor, Michigan, where she knew she would be granted parental rights as the gestational carrier of the child. After her birth, the baby, Serraphina, was adopted by Rene Herrell. Sadly, she died in 2020 at the age of eight due to complications from a necessary heart surgery and an ensuing infection. 

Intriguingly, in 2018 a Michigan judge used the 1988 Surrogate Parenting Act to determine a ruling in a custody battle between lesbian parents. Back in 2011, Michigan residents LaNesha Matthews and Kyresha LeFever became a couple and decided they wanted to have children. Ms. LeFever underwent an egg retrieval, those eggs were then fertilized with sperm from a donor and transferred to Ms. Matthews’ uterus. Soon the couple found they were pregnant with twins.

When the babies were born, Ms. Matthews was listed on the birth certificate while Ms. LeFever was not, but the children had LeFever as their surname. The couple raised the twins for a few years together but in 2014 they split but decided to co-parent. However in 2016, Ms. Matthews developed serious health issues so Ms. LeFever took over as the primary parent.

Unable to sort out a custody agreement between themselves, Ms. LeFever filed suit in 2018, where the judge ruled that Ms. Matthews—who gave birth to the twins—was not a parent to the children but simply the surrogate. (Ellen Trachman, who wrote about the case in Above the Law state that, “As an attorney that practices in and writes about surrogacy on a daily basis, I can assure you that LeFever and Matthews’ birth and parenting arrangement was in no way a form of surrogacy.”)

in April 2021, the Michigan Court of Appeals unanimously reversed the lower court’s decision and found that the court was incorrect to use the determination that Ms. Matthews was a surrogate under the 1988 law. Judge Elizabeth Gleicher and her colleagues on the court also found error in the previous ruling that the term “natural parent” was limited just to those genetically related to a child.

—Ginanne Brownell (MFA media consultant) and Claire Bletsas (former MFA intern)