Family Law

Will This Case Be The Tipping Point For Michigan To Change Its Harmful Surrogacy Laws?

There's no time like the present for the Wolverine State to recognize that its outdated surrogacy law is no longer protecting Michiganders.

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For those of us who help clients grow their families, Michigan is considered persona non grata. Or, perhaps, state non grata. While all other states in the United States allows parentage by gestational surrogacy, with varying degrees of regulation, Michigan stands alone in its legal harshness, resulting in harm to parents as well as those who help them. In fact, it is not uncommon to see a provision in a surrogacy contract in a family-supportive state that specifically prohibits a gestational carrier from even traveling to Michigan during pregnancy. They just have to hope that none of their Michigan relatives die or get married during that time.

Is This What Was Intended By The Law?

A recent case covered by the New York Times highlights the ridiculousness of Michigan’s outdated laws. Jordan and Tammy Myers of Grand Rapids, Michigan, had a young daughter and were trying to conceive a second child when Tammy Myers found out that she had cancer. Truly a fighter, Myers endured 18 rounds of chemotherapy, 28 rounds of radiation, and over 25 surgeries. Myers was public with her battle, and was an outspoken supporter for cancer-fighting causes. When she shared on social media that they still hoped to have another child, but that she was unable to carry the child herself due to the cancer, Lauren Vermilye reached out. Vermilye explained that she felt blessed to have had such easy pregnancies and wanted to help. Vermilye was an answer to the Myers’ prayers. Without compensation or any other inducement (other than the satisfaction of making a major difference in someone else’s life), Vermilye underwent an embryo transfer with embryos genetically related to Tammy and Jordan Myers, resulting in a twin pregnancy. However, when attorneys asked a Kent County, Michigan, court to recognize the Myers as the parents of the children, it said no. The Michigan court system said that state law prevented such a finding.

What Does Michigan Law Currently Say?

The Michigan Surrogacy Parenting Act (MCL 722,851 et seq.) is clear that “a contract, agreement, or arrangement in which a female agrees to … surrogate gestation, and to voluntarily relinquish her parental or custodial rights to the child” is completely unenforceable. OK, such a contract is not enforceable, no big deal. There wasn’t a contractual dispute — or any other dispute between the parties — anyway.

It gets harsher. If the arrangement involves compensation, the participating parties can be found guilty of a misdemeanor with a fine of up to $10,000 and/or imprisonment of up to a year. And a person, other than a party, who assists or otherwise participates in a contract for compensation is subject to a felony with possible imprisonment of up to five years and/or a fine of up to $50,000. Here, Vermilye didn’t ask for compensation for her generous act, so still no crime for anyone. Phew!

So while a contract or agreement for no compensation involving legal adults who are mentally fit is not criminal, the agreement is worthless in court. But with no crime committed, and all parties in agreement, does it make sense that the Myers would be denied parental rights to their children?

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What Have Michigan Judges Been Doing?

Despite Michigan’s draconian law, if there is one thing we all learned from Jurassic Park, it is that life finds a way. I spoke with Michigan family attorney Dion Roddy, who represents the Vermilyes. Roddy explained that uncompensated gestational surrogacy arrangements have continued to occur in Michigan, despite the law. The parties are unable to enter into a contract with each other with any enforceability and are unable to include compensation — out of fear of imprisonment — but otherwise the arrangements generally go smoothly with Michigan judges granting the parties’ requests that the intended parents be named legal parents of the resulting children. In fact, Roddy notes that a judge in the same county as the Myers’ case, Kent County, had previously granted a petition for parentage in an uncompensated surrogacy matter.

The initial denial of parentage in the Myers case was a disappointment. The parties then brought a paternity action asking that at least Jordan Myers, the genetic father of the children, be named as a parent, per Michigan paternity law. The rejection of that second action was a surprise.

What Was Intended?

The Michigan law was passed in the late 1980s, as a reaction to the Baby M Case, where a “traditional” or “genetic” surrogate (meaning the surrogate was genetically related to the child she was carrying) changed her mind about relinquishing the child to the intended parents. She fled across the country with the child and spurred headlines with the nation watching in horror. With that kind of heartbreaking story, it is not surprising that Michigan legislators responded by trying to protect women and children from such arrangements.

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But the Baby M Case is nothing like today’s surrogacy practices and clearly nothing like the Myers’ case. So what is the Michigan law accomplishing? Here, robbing the Myers of their legal recognition of parentage and thrusting it, unwillingly, upon the Vermilyes. Significant complications can come from incorrect legal recognition of parentage. Medical decisions. Financial responsibility. And insurance.

The Myers’ twin babies arrived eight weeks early, and are currently in the hospital NICU. Under a gestational carrier arrangement in any other state, the Myers would have been recognized as the parents, and the babies would be on their insurance. Here, no recognition of parentage, means no insurance coverage from the parents, the Myers.

It’s Time.

Well, actually it’s way past time. But there’s no time like the present for the Wolverine State to recognize that its outdated surrogacy law is no longer protecting Michiganders and instead is hurting them. Groups like the Michigan Fertility Alliance, founded by Stephanie Jones (check out this podcast interview with her), are hoping that state legislators will see the stories like the Myers’, and start recognizing that no matter your politics, Michigan families deserve better.

Ellen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at babies@abovethelaw.com.

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