Family Law

She Gave Birth To Her Own Children, Then A Michigan Judge Ruled Her To Be A Surrogate

There are many ways to form a family, and all families deserve equal respect under the law.

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A lot of surprising things happen when the use of assisted reproductive technology slams up against outdated family law doctrines. I see a lot of unexpected cases that end up in this column. This case is actually shocking to me.

Reciprocal IVF

Michigan residents LaNesha Matthews and Kyresha LeFever became a couple in 2011, and, like many couples, decided they wanted to have children together. They found a path to parenthood that allowed them each, as a same-sex female couple, to play special roles. They conceived through “reciprocal IVF” or a “co-maternity” arrangement, among the procedure’s many names. LeFever underwent an ova (egg) retrieval procedure, her eggs were fertilized in a fertility clinic with sperm from a donor, and the resulting embryos were transferred to Matthews’ uterus. The procedure was successful, and Matthews gave birth to twins.

At the time, pre-Obergefell, the couple was not legally permitted to marry. Moreover, they knew that Michigan law would not permit both mothers to appear on the children’s birth certificates. In order to rectify this, the couple decided to give birth in Ohio, where they believed both mothers could be named as parents on the birth certificates. It’s not entirely clear if that would have worked. Regardless, due to the twins’ arrival two months early, the Ohio birth plan did not pan out, and the birth occurred in Michigan. Matthews, as the birthing mother, was listed on the babies’ birth certificates, while LeFever was not. However, the children were given LeFever’s last name.

The couple raised the children together for several years, but split up in 2014. They continued to co-parent from separate households until 2016, when Matthews experienced serious medical issues, causing LeFever to take over primary parenting. In 2018, the couple was unable to resolve their custody disagreements on their own, and LeFever filed suit. Here’s where things got crazy.

The Trial Court Makes A Shocking Ruling

The Michigan trial court judge, bizarrely, ruled that Matthews (who gave birth to the twins) was not, in fact, a parent to the children. Instead, the judge determined Matthews to be only a surrogate under Michigan’s Surrogate Parenting Act. That statute, by the way, prohibits the enforceability of surrogacy agreements, and criminalizes compensated surrogacy — leaving Michigan as one of the only remaining states in the country to do so!

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The trial judge ordered that Matthews merely had third-party standing (like a grandparent or stepparent), which would require her to show by clear and convincing evidence (a very high standard), that it was in the twins’ best interest for her to have custody. After a six-day trial, the judge determined that Matthews had not met that high bar, and ordered that sole custody be awarded to LeFever, and ordered Matthews’ name to be removed from the twins’ birth certificates. Wow.

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.

Thank Goodness For Appellate Courts

Thanks goodness not only for appellate courts, but also for organizations like the National Center for Lesbian Rights (NCLR), which took up Matthews’ case and, along with her local trial counsel Regina Jemison, represented her on appeal. Moreover, amicus briefs were filed on Matthews’ behalf by Professors Courtney Joslin and Douglas NeJaime, the ACLU, ACLU of Michigan, Center for Genetics and Society, and Pro-Choice Alliance for Responsible Research. All were in agreement that the trial court’s ruling was pure craziness — but said it diplomatically, in more legal terms.

On April 1, 2021, the Michigan Court of Appeals unanimously reversed the trial court’s decision. And it wasn’t even an April Fool’s joke. The Appellate Court found that the trial court had erred on numerous points. These included the determination that Matthews was a surrogate under the Surrogate Parenting Act — which, by the way, requires voluntarily relinquishment of parentage by the surrogate as a necessary element of a surrogacy-arrangement. The Appellate Court also found error in the trial court’s determination that the term “natural parent” was limited to persons genetically related to the child.

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NCLR Deputy Director and Family Law Director attorney Cathy Sakimura explained, “The Michigan Court of Appeals rightly found that genetics is not the only way to establish a parent-child relationship. There are many ways to form a family, and all families deserve equal respect under the law. We are grateful that our client and her twins are once again recognized as a family.” Well done, NCLR.

The case highlights a couple of points that family law attorneys have been trying to make for years now. One, even though Michigan has plenty of positive things about it, its laws — particularly the surrogacy and family law ones — desperately need updating. That need is further demonstrated in another recent case in Michigan, where a cancer survivor and her spouse are being forced to adopt their own child.

Second, being named on a birth certificate is not enough for judicial recognition of a parent’s legal relationship with his or her child. Hence the advice from attorney Amira Hasenbush, in this piece for Connecting Rainbows, for all same-sex couple parents to get a court order recognizing their parent-child relationships. Ideally completed before your ex drags you to court in a custody dispute.

Our nation is a vast patchwork of state and local laws, sometimes for the better. In many cases, states function as laboratories of democracy, where improvements in public policy can be achieved through a form of trial and error by individual states. On the other hand, then there’s Michigan‘s surrogacy laws. Where the laboratory is possibly run by a mad scientist, and where individual parents risk being hurt by the vagaries — and worse — of surrogacy law. Parents be careful!

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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