The Surrogate Parenting Act of 1988: Revisiting the Evolution of Assisted Reproductive Technology, Surrogacy, and Public Policy Concerns in 2023
Assisted Reproductive Technology (“ART”) has dramatically changed the landscape of procreation and parenthood in the United States and abroad. Since its advent forty-five years ago, over four hundred fertility centers have begun offering ART treatments, with almost 80,000 infants born annually as a result, representing a two-fold increase in the use of ART across a single decade. As ART becomes more sophisticated and accessible in response to rising infertility rates, experts forecast impressive economic success for the industry. In fact, one organization projects the industry will be worth over fifty billion dollars by 2030. The proliferation of ART would appear to be all but assured. However, in the U.S., many states remain apprehensive of one specific form of ART: gestational surrogacy.
There are two types of surrogacies—“traditional” and “gestational.” In traditional surrogacy, the carrier is also the biological mother (i.e., her own eggs are used). Gestational surrogacy is distinct from traditional surrogacy because the carrier is not genetically related to the fetus. Instead, physicians use eggs and sperm from the intended parents or donors to create an embryo, which they later implant in the gestational carrier. Although traditional surrogacy is generally achieved via intrauterine insemination and, therefore, not considered ART, state statutes often address both forms of surrogacy, even regulating them differently in certain areas. In fact, it was the landmark case of “Baby M,” a traditional surrogacy, that, in part, motivated states to prohibit or heavily regulate surrogacy contracts as a public policy concern. The case garnered national attention when Mary Beth Whitehead, a surrogate for William and Elizabeth Stern, fled with the child rather than terminating her parental rights as contractually bound. After an appeal, Whitehead was awarded visitation rights and remained on the child’s birth certificate.
In the wake of Baby M, the country took a patchwork approach to surrogacy in lieu of federal regulation. State common law, statutory prohibitions, and indirect assent embedded in state codes created an incoherent perspective on surrogacy. Some jurisdictions, like Utah, only permit gestational surrogacy when the intended parents are legally married. Alaskan courts, too, will generally only issue a pre-birth parentage order to heterosexual parents when they are married and both genetically related to the fetus (i.e., no donor eggs or sperm are used). Over time, states have become more open to gestational surrogacy, even rolling back sweeping prohibitions. New York, for example, legalized gestational surrogacy in 2020, citing, in part, discrimination concerns for LGBTQ+ couples.
Michigan, however, has largely remained steadfast in its disapproval. The Surrogate Parenting Act was erected in 1988 and declared all compensated surrogacy contracts to be “void and unenforceable as contrary to public policy.” Under the Act, third-party “arrangers” may also face felony penalties. The Act had come under renewed fire in recent years when the Myers, a Michigan family, endured a multi-year legal battle to adopt their own twins, despite a fully cooperative carrier. Years prior, Tammy Myers underwent treatment for breast cancer and later received a partial hysterectomy. Unable to carry her children, she harvested her eggs and turned to gestational surrogacy.
Contract law can be broadly understood as a negotiation between private agreements and public law (e.g., statutes and common law principles). Surrogacy contracts, in particular, have been invalidated on a public policy basis, perhaps to avoid the repeat consequences of Baby M and in response to growing concerns around the commercialization of women and fetuses. Public policy generally precludes a contract when it harms a public benefit or citizens, injures the state, or otherwise breaches the law.
Although surrogacy and ART at large implicate significant practical and ethical issues like child welfare and the commodification of female bodies, the Surrogate Parenting Act of 1988 is best described as an outdated reaction to the widespread use of evolving technology. That is, the Act remains inflexible despite advancements made in peer states; it perhaps, ironically, stands contrary to the public good of many Michiganders, especially those struggling with infertility, the LGBTQ+ community, and their surrogates. In the Myers’ case, the Act prevented compensated surrogacy. Instead, they were required to find a “compassionate surrogate” through Facebook and forego payment aside from limited reimbursement for pregnancy-related expenses.
The family endured repeated and costly legal hurdles when their pre-birth order and Jordan Myers’ motion for paternity were both denied. The Act also forces many families to seek expensive surrogacy arrangements outside of Michigan, making it more challenging to participate in the pregnancy. Unsurprisingly, such legal issues are associated with psychological and physical stress, including stress-related illness and sleep interruptions, which is especially detrimental for pregnant women, like surrogates, along with fetuses and pre-existing children. If the Myers had lived just one state over, in Illinois or Ohio, and outside the reach of the Surrogate Parenting Act, they could have avoided years spent fighting for their children.
Improvements in Michigan, however, are within reach. In the Fall of 2022, legislators set forth several bills to repeal the Surrogate Parenting Act, streamline the process for intended parents, and decriminalize surrogacy contracts. Although the proposed bills still restrict compensation, they allow for increased support, including living expenses, which offers more substantial financial protection to surrogates. ART continues to evolve and expand its reach: several states, albeit a minority, require insurance companies to cover infertility, organizations are providing surrogacy benefits, and more babies will be born via surrogacy than ever before. In the face of these advances, changes to the Act are a critical first step in creating more equitable access to parenthood, protection for carriers, and jurisdictional consistency surrounding ART.
Belen Best is an Associate Editor on the Michigan Technology Law Review.