Michigan Still Refuses to Enforce Surrogacy Contracts

Baby M is a great case for illustrating the contours of freedom of contract.  It’s an easy case because the contract at issue is flat-out illegal in New Jersey.  It’s a good case because the court also provides compelling reasons to think hard about the ethics of surrogacy contracts.  We have posted on this topic before, e.g. here, here, and here.  The case is 35 years old, but it’s still fresh as a daisy in Michigan.

Most states have made their peace with surrogacy contracts; Michigan has not, as illustrated in this story in the New York Times (h/t OCU Law 1L Kathryn Moore).  Jordan and Tammy Myers conceived a child that was carried by a surrogate mother.  The surrogacy went smoothly.  The woman who served as the Myers’ surrogate mother did so willingly,  voluntarily, and without charging them anything.  She and her husband have become good friends with the Myers.  They have children of their own and they wanted to share that gift with an infertile couple.  They have signed affidavits that they are not the biological parents of the baby that the surrogate mother carried.

But Michigan has strict laws against surrogacy contracts.  It does not recognize the parental rights of the receiving couple, and it threatens penalties of up to five years in prison and a $50,000 for anyone who pays a woman to act as surrogate.  But that seems to be an empty threat.  According to the Myers’ attorney, Michigan courts have awarded parental rights to people in their position in over 70 cases since 2005.  They just have to go through the traditional adoption process, which is no doubt aggravating in a case such as this one. 

Although the Myers knew that surrogacy was difficult in Michigan, they felt that they had no choice.  They wanted to be in contact with the surrogate, rather than states away, and they could not afford to pay a surrogate, as one has to do in states where surrogacy contracts are permissible.  The judges who have denied the Myers’ motions for recognition of their parental rights seem to have no choice.  Their contract with their surrogate is unenforceable.  

One hopes that Michigan can find a solution.  It is heartening to know that there are people who are willing to act as surrogate mothers for families that can not or can no longer have children on their own.  Surrogacy contracts can be a fabulous illustration of the ways in which contracts can make the world a better place.  Like all contracts, they can be subject to abuse, but Michigan now has plenty of models to follow so that it can permit couples to have their own biological children and permit women who are willing to do so to assist them.