Detroit Moms: Surrogacy in Michigan
MFA’s guest blog piece in Detroit Mom, published April 23, 2023
Unbeknownst to most Michiganders, the Great Lakes state has played a pivotal role in the global history of surrogacy. It all started back in the mid-1970s. Dearborn lawyer Noel Keane wrote what is believed to have been the world’s first compensated surrogacy contract. It was between a couple and a traditional carrier.
In surrogacy there are two kinds of carriers. Traditional, or genetic, carriers donate their own eggs to the intended parents for their surrogate pregnancy. Gestational carriers are implanted with the embryo of the intended parents. There is no biological connection between the baby and the gestational carrier.
Mr. Keane died in 1997. Mr. Keane’s son, Christopher, told us that over the years at least 600 babies were born through contracts that his father created between intended parents and surrogates. One of those children was Jill Brand (nee Rudnitzky), the world’s first gestational surrogacy baby. She was born in Michigan in 1986. (We did a world exclusive interview with Jill on our blog where she spoke about her views on surrogacy).
A Monumental Ruling on Surrogacy
Michigan was also the first place in the world where a judge, Marianne Battani, ruled in Jill’s case that the intended parents, and not the surrogate, should be listed on her birth certificate. This ruling was monumental, as most other countries to this day adhere to the Roman law principle of mater semper certa est (“the mother is always certain”), meaning that the woman who gives birth to a child is considered to be the mother, regardless of whether there is a genetic link.
Since that ruling the United States, due to advances in assisted reproductive technologies (ART), has made significant progress recognizing that mater semper certa est isn’t always certain. Today in the U.S., about 2% of all assisted reproductive technology cycles involve a gestational carrier.
All of Michigan’s progressive happenings ended in 1988 when then-governor James Blanchard signed into law the 1988 Surrogate Parenting Act.
This is in large part because of Mr. Keane’s role in the controversial and heart-breaking Baby M case where a New Jersey traditional surrogate decided to keep the baby, despite having signed a contract that was written up by Mr. Keane. That meant that Michigan became the first state in the U.S. 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.
So, despite all these firsts, Michigan went from being on the cutting edge of surrogacy to the last in line, being the only state in the U.S. that still criminalizes compensated surrogacy with a felony.
Although not impossible, surrogacy in Michigan has unique challenges due to that 1988 law. Surrogacy contracts are not legally recognized in Michigan courts. There is no contractual protection to either party or the child. A loophole in the 1988 law allows for “altruistic” or non-compensated surrogacy, but does not provide legal language for securing the rights of parents or contractual legal protection.
The law assumes that those unable to carry a pregnancy have access to a woman willing to act as their carrier without compensation. And, that the woman will be medically and psychologically approved to do so. However, this is not the case. Most Michiganders pursuing surrogacy must go out of state to be matched with a carrier. The rigors to qualify as a genetic or gestational carrier are lengthy. Most women don’t qualify.
Michigan remains the state that most harshly regulates the practice.
This is unlike most other states. Most have now either rolled back their surrogacy laws or created new ones that allow for contracts. While an overwhelming majority of other states have progressed to allow legal family formation for infertile and non-traditional couples, Michigan lags miles behind.
The right to have a child is a key tenet of reproductive justice in the United States. There is an urgent need to update parentage and surrogacy laws in the Great Lakes state for children born through assisted reproduction and surrogacy. Every family should have equal access to secure parent-child relationships from birth. This stability is so important to children, to families, and to our communities.
Earlier this month the Michigan Supreme Court heard oral arguments in a case between a former same-sex couple battling over the custody of a child they raised together. This case could have huge implications not only for the LGBTQ+ community, but also for unmarried couples who grow their family using assisted reproduction.
At the moment, Michigan does not provide a clear pathway to parentage rights for those parents who use a Michigan-based friend or family member to carry their baby to birth. Because there’s no transparent guidance from the 1988 law, a number of Michigan judges have denied pre-birth parentage rights, and biological parents are forced to adopt their own child after birth. That can take years and can come with significant legal costs. One of life’s most fundamental joys is shrouded in red tape and hurdles.
The inability to carry a pregnancy is a common problem.
Updated numbers from the World Health Organization have found that globally, one in six people struggle with infertility. For those looking to find a reputable agency, clinic, or lawyers, we suggest these national organizations as first ports of call:
Reproductive Alliance: aims to establish national standards for the surrogacy field based on existing guidelines.
Society For Ethics In Egg Donation and Surrogacy (SEEDS): a nonprofit organization. Their purpose is to define and promote ethical behavior by all parties involved in third party reproduction.
By Ginanne Brownell, MFA communications director and Stephanie Jones, MFA founder