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Baby Steps: Acceptance of compensated surrogacy widens with Michigan law rewrite

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For decades, surrogacy was a risky proposition in the state of Michigan, family law attorney Melissa Neckers can attest.

Hiring a woman to carry an embryo and baby to term was illegal and subject to criminal penalties. “Altruistic,” or volunteer, surrogacy occurred, but Michigan did not recognize the legality of arrangements between parents and their gestational carriers.

“If it went wrong, it could go very wrong,” says Neckers, senior counsel with the law firm Miller Johnson in Grand Rapids.

Over the years, she advised couples to go outside Michigan to avoid problems. When that wasn’t possible, Neckers says, she helped write dozens of nonbinding “memorandums of understanding” that could at least serve as road maps for parents, their surrogates and the medical professionals who assisted them.

Things changed dramatically in April, when Gov. Gretchen Whitmer signed the Michigan Family Protection Act. The multibill package regulating assisted reproduction, including surrogacy, drew wide attention for its decriminalization of compensated surrogacy; Michigan was the only state where this was a crime.

Sponsoring state Rep. Samantha Steckloff of Farmington Hills says not everyone is fortunate enough to have a friend or family member to assist them altruistically with a surrogacy. As a cancer survivor, she said her main goal was to help women who cannot carry their own child and to alleviate the legal constraints for couples who use surrogacy.

Under Michigan’s 1988 law, complications could arise if couples were unable to secure a “pre-birth order” identifying them as the biological parents for the birth certificate. In one highly publicized circumstance, it took nearly two years for Tammy and Jordan Myers of Grand Rapids to legally adopt twins created from their own gametes, even though the surrogate who volunteered to carry their children did not contest the issue. Tammy Myers has described the process as demeaning.

Michigan’s new law sets up a streamlined system under which courts must enter a judgment of parentage for the intended parent or parents, provided they follow all of the necessary conditions.

“This package is really a parentage package,” Steckloff said. “It’s about making sure that no matter how a child is brought into this world, there is a very easy path for parentage.”

Different views on surrogacy

There are critics of surrogacy, particularly when compensation is paid. Some nations, such as France, Germany and Italy, ban all forms of surrogacy. Other countries, including Canada and Great Britain, allow some forms of altruistic surrogacy.

In January, Pope Francis said surrogacy leads to the financial exploitation of women and should be banned worldwide. The pontiff said children should never be “the basis of a commercial contract.”

Closer to home, the organization Right to Life of Michigan shared its own concerns as the surrogacy measures gained momentum in Lansing. Some of the embryos produced for in vitro fertilization—the process central to surrogacy—end up failing, being discarded or frozen indefinitely, which Genevieve Marnon, Right to Life of Michigan’s legislative director, calls “a tremendous loss of life.”

The Michigan bills passed largely along party lines in the legislature, where Democrats hold a slim majority. But the prevailing sea change in the state signals a growing acceptance of surrogacy and the technology behind it, says Richard Vaughn, past chair of the ABA Family Law Section’s Assisted Reproductive Technologies Committee.

“The new law in Michigan is a continued reflection of the evolution of assisted reproduction as a permanent and accepted method of family building in the U.S.,” says Vaughn, founding partner of International Fertility Law Group.

In a tangential development earlier this year, parents in Alabama who relied on IVF to have children pushed back after the state’s high court ruled frozen embryos have the same protections as people. This halted work at some fertility clinics, and the Republican-controlled legislature responded by approving indemnifications for IVF practitioners without addressing the legal status of embryos.

“IVF is a complex issue, no doubt, and I anticipate there will be more work to come,” Republican Gov. Kay Ivey said in a statement upon signing the measure.

The Baby M legacy

Michigan’s reversal on compensated surrogacy comes nearly four decades after the Baby M case from the late 1980s prompted state legislatures to grapple with the implications of emerging reproductive technology.

In that legal case, a woman who agreed to be inseminated with a man’s sperm for a $10,000 fee later refused to give up the resulting child. The intended father and his wife eventually won custody, but not before the New Jersey Supreme Court called the failed arrangement “illegal, perhaps criminal and potentially degrading to women.”

Many surrogacies today are gestational surrogacies, in which intended parents provide the genetic material for the child, and the carrier nurtures the embryo until birth. Different scenarios are possible, however, such as when same-sex couples use egg or sperm donors.

Formal statistics are not compiled, but thousands of children are believed to be produced through surrogacy each year in the U.S., which has no federal law governing the process. Most states allow for some form of compensated surrogacy, according to Creative Family Connections, a law firm and surrogacy agency that pairs intended parents with compensated surrogates.

The organization, founded by family lawyer Diane Hinson, has long kept track of the ever-changing patchwork of state laws and case law within state court systems. On its website, Creative Family Connections regularly updates a color-coded map of the United States to advise people interested in surrogacy.

While the vast majority of states are considered “green light” environments, Creative Family Connections classifies a handful of states as yellow or orange—as in, proceed with caution. One example is Nebraska, where contracts for compensated surrogacies are “void and unenforceable” and parental rights are held by the biological father.

The Nebraska statute is silent on volunteer surrogacy arrangements, says Susan K. Sapp, senior litigation partner at the Lincoln and Omaha offices of Cline Williams Wright Johnson & Oldfather. Over the years, she has represented both parents and surrogates in drafting gestational carrier agreements with the caveat that they may not be enforceable, she says.

“There’s a lot of leaping,” Sapp says of the trust, or faith, that is necessary to move ahead.

The last significant holdout against compensated surrogacy is Louisiana, observers say. Under a 2016 law, the state recognizes only contracts between volunteer surrogates and heterosexual married couples using their own egg and sperm. Although compensation is prohibited, a surrogate’s medical expenses may be covered.

An expensive endeavor

Where compensated surrogacy is allowed, the considerable financial cost—all expenses and the carrier’s compensation—falls on the intended parents. The total can reach $180,000, including the going rate of about $55,000 of compensation for the surrogate, Hinson says.

Her agency follows strict standards in finding and vetting surrogates, she says. Ideally, gestational carriers are financially comfortable married mothers who enjoy the experience of being pregnant and want to help someone increase their own family. An independent lawyer always represents the surrogate’s interests, Hinson says.

“We don’t want anyone to feel pressured to do this for compensation. I can only speak for our agency,” she says.

The new Michigan law has many guardrails built in to protect gestational carriers, proponents say. Surrogates must be at least 21 years old, have previously given birth and must undergo medical and mental health screenings. Surrogates also must be provided their own lawyer for contracts, and these agreements “must permit the surrogate to make all health and welfare decisions regarding the surrogate and the pregnancy,” the new law says.

Neckers says it’s too early to tell how every aspect of surrogacy will work in her state, but at least she has a detailed statute to consult. She’s not sure if the process of using a surrogate will become more common in Michigan.

“People either need a surrogate or they don’t,” Neckers says. “People don’t do this, at least in my experience, because they don’t want stretch marks. They are doing this because they have fertility issues and they cannot conceive or carry a pregnancy.”

This story was originally published in the June-July 2024 issue of the ABA Journal under the headline: “Baby Steps: Acceptance of compensated surrogacy widens in the U.S. with Michigan law rewrite.”

Mike Ramsey is a Chicago-based freelance writer whose career has encompassed print and digital news media.

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