You and your spouse want to have a child, but you are unable to carry a child to term. You have explored your options and have found that there is no way for your wife to bear the pregnancy. What do you do? Is there another legal option?
A surrogate mother is a woman who carries a baby from conception (usually through artificial insemination) until delivery for the benefit of intended parents other than her and her husband. In some states, surrogate parent agreements are completely legal. But in Michigan, the law is in a bit of a gray area. Put simply, surrogate arrangements can occur in a limited way, but they aren’t exactly enforceable.
The Surrogate Parenting Act, became law in Michigan in 1988 when artificial insemination was still a relatively new science. The law confusingly states that a surrogate parentage contract is “void and unenforceable as contrary to public policy” and lays out procedures for determining the custody of a child born to a surrogate mother as a result of that contract. But what is clear is that any surrogate parentage agreement where the surrogate receives compensation, or where the surrogate is under age, intellectually or developmentally disabled, or suffers a mental illness is not only illegal, but grounds for criminal charges.
And yet, surrogacy in Michigan continues. Often friends or family members of the infertile couple will offer to carry the baby without compensation. The couple covers the pregnancy and medical expenses (which are not considered compensation under the statute), but provides no other payment, gifts, services, or anything of value. The agreement then allows the surrogate mother to relinquish her rights to the child in favor of the genetic parents. All three parties can then appear in court and get pre-birth orders of paternity and maternity, which will be honored by the Michigan Department of Community Health and Michigan hospitals.
The practice carries on because most people in a surrogacy situation are not about to change their minds about custody. While the contract is “void and unenforceable” by law, this only becomes important if one of the parties later challenges custody and asks the court to interpret the contract. As long as surrogate and genetic parents are all on the same page, the surrogate parenting agreement stands.
If you are considering a surrogacy relationship it is very important that you talk to an attorney early in the process. The Surrogate Parenting Act imposes a 5 year felony on any person who contributes to the creation of a surrogacy agreement where the surrogate is a minor, intellectually or developmentally disabled, or has any mental illness. To avoid accidentally committing a felony, contact family lawyer Lisa J. Schmidt for a consultation.