Why is Michigan important to the history of global surrogacy?
Michigan plays an integral role in the history of surrogacy, not only within the United States but around the globe as well.
But before we get into all that, it’s important to clarify a few terms. Traditional surrogacy, which some argue, dates back to Biblical times to the story of Sarah and her maid Hagar, is the practice of a surrogate who also serves as egg donor. While this went on informally for centuries, the first recorded commercial surrogacy contract in the United States (and very likely the world) was brokered by the late Dearborn, Michigan lawyer Noel Keane in 1976. (The American Bar Association strictly defines all assisted reproduction—including surrogacy—as, “a method of causing pregnancy through means other than sexual intercourse.” So by these new definitions, Hagar today wouldn’t be considered a surrogate).
Gestational surrogacy, meanwhile, only dates to the mid-1980s when the South African-born, Cleveland-based gynecologist Wulf Utian implanted a biological embryo of the intended parents (IP) into a Michigan woman who had no genetic connection to the child. Today, it is estimated 95% of surrogacies in the U.S. use this technology. The contract between the IP and the carrier, Shannon Boff, was brokered by Mr. Keane as well. That baby girl, Jill Rudnitzky, was born in Ypsilanti, Michigan in 1986 and a local Michigan judge ruled that the intended parents, not the surrogate, should be listed on the birth certificate as her parents. (Check out our exclusive interview with Jill here)
This was monumental: the first ruling of its kind in the world, 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 by Michigan judge Marianne Battani, the United States, due to advances in assisted reproduction, has made significant progress recognizing mater semper certa est isn’t always the case. Yet 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 criminalizes compensated surrogacy and contracts with a felony.
In addition, the Great Lakes state is one of two or possibly three states that do not recognize gestational surrogacy contracts. Depending on the state, these contracts grant a married heterosexual and/or a gay couple parental rights to the child that their surrogate carries for them. There are two types of surrogacy contracts: altruistic and commercial (there is a debate whether they should be instead referred to as compensated and non-compensated surrogacies but for many that is splitting hairs).
Non-compensated surrogacy contracts do not involve the surrogate being financially compensated by the intended parents, though in most cases there is some kind of compensation, even if it is bundled as “expenses.” Commercial surrogacy, meanwhile, is defined as a third party receiving a fee for matching IPs and surrogates. The amount that the surrogate is compensated is unique in each case, and often covers travel expenses, medical fees, legal fees and other costs that arise during the pregnancy.
Since that first contract was signed in 1976, Mr. Keane arranged a multitude of surrogacy contracts nationwide. His legacy remains controversial; some argue that he aided in what some second-wave feminists decried was the “commodification of the womb” as many surrogates were financially compensated by IPs through commercial surrogacy contracts. This debate made international headlines in 1986 with the Baby M case, where the traditional surrogate, Mary Beth Whitehead, reneged on her contract with the IPs, Elizabeth and William Stern. What ensued was a taxing legal battle to determine who had parental rights to Baby M-- her intended parents or the surrogate.
In reaction to the controversial case, many states banned surrogacy altogether, including Michigan. The Wolverine state, however, went even further, establishing itself as the first place in the U.S. to make surrogacy a felony punishable by a heavy fine and even jail time. While most states have now either rolled back some of their surrogacy laws or created new ones that allow for contracts, Michigan remains the state that most harshly regulates the practice. Here, all surrogacy contracts are unenforceable, which means that heterosexual or gay couples--or single parents-- who pursue surrogacy are taking a gamble on whether they’ll be legally granted parental rights after their baby is born.
Additionally, if the surrogacy arrangement involves financial compensation, all parties are subject to up to a $10,000 fine and/or imprisonment for up to a year. 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. It’s time our state legislature supports that.
***This has all changed now that the Michigan Family Protection Act, which passed in the Michigan Senate on March 19, 2024, will become law once it is signed by Governor Gretchen Whitmer.
—Ginanne Brownell (MFA communications)