Stonewall Democrats at the University of Michigan
“We are not our own any more than what we possess is our own. We did not make ourselves, we cannot be supreme over ourselves. We are not our own masters.” - Brave New World
Although we owe a lot of credit to the advancement of medical technology, many ethical questions remain as to how we should use such technology. Surrogacy, for example, is an option for couples who wish to bring life into the world. However, in many cases, such as in the state of Michigan, there are confusing and contradicting laws surrounding surrogacy. How can a surrogate parent give birth to a child with whom they bear no genetic connection, but still have legal rights over that child? As we attempt to create laws around the advancements of medical technology such as surrogacy, we have discovered that many of these laws can do immense damage, especially to the LGBTQ+ community.
In a surprising and confusing turn of events, one couple in Michigan had to go through the legal adoption process for their biological children this year. Jordan and Tammy Myer’s twins were born via surrogacy, a process in which Tammy’s eggs and Jordan’s sperm were carried to term by their volunteer surrogate Lauren Vermilye. But despite being the babies’ biological parents, the Myers were denied the legal right to their children as a result of Michigan’s anti-surrogacy laws. Instead, the Vermilyes (Lauren and her husband) were listed as the parents. When the Myers went to court to request parental rights, they were denied twice. Now, they must go through the rigorous, expensive, and time consuming process of adopting their own children.
Michigan’s Surrogate Parenting Act of 1988 is to blame; the law states that surrogacy contracts cannot be legally enforced. Louisiana and Nebraska are the only other two states that have such outdated and backwards surrogacy laws. Although in many cases the biological parents are able to gain parental rights through the court system, some like the Myers aren’t so lucky. These laws mean that people who want to have children through a surrogate parent-- which is often the only method for same sex couples by which to have biological children-- risk having no rights to raise their own children.
So what exactly is the science behind surrogacy? There are two forms: traditional, in which a surrogate is artificially inseminated with either a father or a donor’s sperm, and gestational, in which the surrogate is implanted with fertilized eggs through in-vitro fertilization. In traditional surrogacy, the surrogate is the child’s biological mother, while in gestational surrogacy the surrogate is not biologically related to the child, as with the Myers’ case.
The process of surrogacy varies by state and situation. Many intended parents find surrogates through surrogacy agencies, but many also find surrogate volunteers online or ask a friend or family member. After a surrogate is found, a surrogacy contract is usually written and signed by both parties and ideally, a pre-birth order is obtained. This is a legal order that allows the baby to be discharged to the intended parents after birth and expedites the post-birth legal process. But for the Myers and many other intended parents in states like Michigan, these steps can be difficult. The previously-mentioned Michigan Surrogate Parenting Act MCL Section 722.851 makes all surrogacy contracts “void and unenforceable as contrary to public policy,” and pre-birth orders can only be obtained if at least one of the intended parents is genetically related to the child and the intended parents are married. And as seen in the Myers’ case, meeting these narrow-minded requirements isn’t even enough if a judge decides to block the order regardless.
The restricting laws seen in Michigan are an additional burden on top of the many challenges of surrogacy experienced by intended parents across the country. The process can be very expensive. Costs can include agency fees, procedure fees for IVF, legal fees, medical expenses, surrogate compensation, and more. With gestational surrogacy in particular costs can rise even higher if multiple rounds of IVF are needed. There is no set price for the process, but overall it tends to cost over $100,000 at least. This makes it a difficult option for lower income individuals.
The history of LGBTQ people seeking to become parents through adoption and sperm banks began in the 1960s and 70s, but in most of these cases, parents were allowed custody as individuals, not couples, and some required that they not partake in “homosexual activities.” The first time a same-sex couple jointly adopted a child was in 1979. Queer parents and individuals hoping to become parents advocated throughout the late 20th century for equal rights to be moms and dads. The National Center for Lesbian Rights, formed in 1977 by two San Francisco lawyers, still helps LGBTQ parents in custody disputes today.
The right of LGBTQ couples to have one or both of their names on their children’s birth certificates has been fought long and hard. In 1999, a gay couple from the UK starting a family through surrogacy in California were the first in the United States to have both of their names on their child’s birth certificate. Unfortunately, this battle continued into the 21st century. In most states, surrogacy is equally legal (or illegal) for heterosexual and homosexual prospective parents. As of 2011 in Wyoming, however, only the biological parent in a same-sex couple could be on the birth certificate. This is a double standard; heterosexual couples can list both parents’ names even when one of them is not a biological parent (ie, they are using an egg or sperm donor). A 2017 Supreme Court ruling should protect the rights of those LGBTQ parents in Wyoming. In the case Pavan v. Smith, the court ruled that married same-sex couples have the right to both be on their children’s birth certificates and be legally recognized as their children’s parents. The path to parenthood has historically been rocky for queer parents, but through the hard work of LGBTQ activists over the last few decades, it is much easier today.
So how do we make sure that situations such as the one endured by the Meyers don’t continue to happen? As previously mentioned, the laws surrounding surrogacy are not uniform and can be quite confusing. As it stands currently, there is no federal law regulating surrogacy. As a result, each state has been left with the task of taking their own approach to governing the use of surrogacy. With only 3 states (LA, MI, NE) still having laws technically deeming surrogacy “illegal,” this lack of federal oversight has led to unequal opportunities for people living in particular areas, and for certain groups of people such as the LGBTQ+ community. With these complex legal issues involved, the costs of surrogacy can run extremely high, even higher than the baseline costs already are. (Hiring lawyers is almost always expensive.) Given that surrogacy is one of only two options for LGBTQ+ couples seeking to become parents, it’s unfortunate that they will be disproportionately affected by this ongoing disconnect between states.
The legality of the practice of surrogacy, both in traditional and gestational forms, is both a women’s rights and LGBTQ rights issue. Going forward, the passage of a comprehensive federal bill that regulates and addresses the discrepancies found among the laws of individual states would be an excellent initiative. Such legislation must prioritize both the interests and protection of surrogates, and of the intended parents, especially those within the LGBTQ+ community. Putting these issues at the forefront would be the best way to make sure that opportunities are available to all those who cannot give birth to children themselves.