Family Law

Michigan Grassroots Grow Efforts To Reverse Surrogacy Ban

It is hard to believe that there’s still an American state where people could go to jail for this widely accepted family-building option.

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Family court (by David Lat).

Michiganders are organizing to have their voices heard on the state’s more than 30-year-old surrogacy ban. On August 26, the Michigan Fertility Alliance met to prepare for an advocacy day scheduled for September 22, 2021. The group is focused on educating Wolverine State legislators on the unique –- not in a good way –- status of Michigan law when it comes to family building options. The members and their supporters say that, despite what may have been good intention when original passed, the surrogacy ban has led to nothing but hardships for folks who hope to grow their families.

The Problem

Back in the late 1980s, following a surrogacy scandal known as the Baby M case, Michigan, along with other states like New York and New Jersey, passed laws banning and even criminalizing surrogacy. Since that time, New York, New Jersey, and pretty much every other state that had an anti-surrogacy law on the books, has reversed course and passed surrogacy-supportive regulations. Michigan stands alone in its extreme stance, threatening felony punishment for anyone who assists with a surrogacy contract in contradiction to the law, and forcing parents to undergo arduous legal processes to obtain legal rights to their own children.

The Stories

At the recent meeting of the Michigan Fertility Alliance, some in the group shared their personal stories of the effect the law has had on them and their loved ones. One Michigan Fertility Alliance ambassador, Aubrey Gojcaj, described struggling with infertility for three years before turning to fertility doctors and undergoing in vitro fertilization (IVF) treatment. In 2018, Gojcaj and her spouse were grateful to welcome the birth of their daughter. However, shortly after delivery, Gojcaj experienced unexplained complications, including extreme hemorrhaging requiring multiple blood transfusions and, ultimately, a hysterectomy, to save her life.

Gojcaj was left without the possibility of carrying to birth their two remaining embryos. Recently, Gojcaj’s sister, a married mother of two and a fellow Michigan resident, offered to be Gojcaj’s surrogate in order to give her two embryos a chance at life. Unfortunately, any contract that the sisters enter into would be invalid under Michigan law, and Gojcaj will not be recognized as a parent of any resulting child — at least not until after she completes an expensive and time-consuming adoption process.

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Separated From Family By The Law

Kittrick Thoune, another attendee at the Michigan Fertility Alliance meeting, shared what her family was going through as a result of Michigan’s surrogacy ban. Thoune is currently pregnant as a surrogate to help a couple realize their dream to be parents. This is her second time being a surrogate. At the moment she lives across the border from Michigan, in Wisconsin, where surrogacy is permitted. However, most of her family lives in Michigan. Thoune recalled how, during her first surrogacy pregnancy, Michigan’s anti-surrogacy law prevented her from visiting and spending holidays with her family in Michigan.

Things are even more complicated with her second surrogacy experience. Her husband had to move to Michigan, but due to the state’s harsh surrogacy laws, she is unable to move with him until after delivery with the current surrogacy pregnancy. If she were to go into labor and give birth in the state, she would be forced to be the legal parent of the child she is carrying for others. She described how she is facing another three months of not even being able to visit her husband across the border. She also explained that living near the border, a number of medical facilities close to her are in Michigan. But the legal risk of crossing into Michigan is too great even for the purpose of seeking medical assistance.

Of course, these stories are in addition to those that have already hit the news over the past few years. Many will remember the cancer survivor that was forced to adopt her own child. Also unforgettable, at least to those of us following the ridiculous effects of Michigan’s anti-surrogacy law, was the application of the statute to a same-sex female couple who went through reciprocal IVF to have children together. In their case, one partner went through an egg retrieval, had her eggs fertilized with donor sperm, and then her partner carried the resulting twins to birth. This is a not uncommon practice for same-sex female couples either for medical reasons, or to give each parent a chance to play a significant role in their child’s conception.

When the couple separated, they ended up in court to resolve custody issues over their 7-year-old twins. The judge ruled that the mother who carried the children to birth was a surrogate under Michigan law! Therefore, the “surrogate” did not have standing as a parent to argue for custody of the children. (Which was especially nonsensical, given the actual surrogacy cases where the surrogates are forced to be recognized as parents against their wishes.) Fortunately, with the help of several nonprofits, including the National Center for Lesbian Rights, and a long appeal process, an appellate judge eventually reversed the trial court’s ruling.

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As I sit here in Colorado, with a freshly passed surrogacy-supportive law that includes regulations to protect the intended parents, the surrogates, and the children born by surrogacy, it is hard for me to believe that there’s still an American state where people could go to jail for this widely accepted family-building option. Hopefully, Michigan legislators will hear the voices of their constituents, and do what’s best for their state.

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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