After years of infertility, Amy Kehoe and her husband decided to construct her own child using reproductive technology. She handpicked a gestational carrier, an egg donor and sperm donor, all the pieces needed for her and her husband to have a baby of their own. During this process, the Kehoe's paid for all the medical procedures because "under Michigan's law, commercial surrogacy is punishable by five years in prison and a $50,000 fine" (Michigan HRC)..
On August 3rd, 2009, the Kehoe's brought home twins, Ethan and Bridget. However, one month later the twins were taken away by the surrogate mother; she is now in custody of the children, and her husband and she now plan to raise the children. Ms. Baker, the surrogate mother, requested a court order to retrieve the children after she learned that Amy Kehoe was being treated for a mental illness. Ms. Baker reported that the fertility clinic "failed to perform psychological screening of the Kehoes, which is recommended by professional societies. Such screening, she believes, might have prevented her from going through with the pregnancy." (Saul) The Michigan surrogacy law states that, "all surrogacy agreements, regardless of the sexual orientation of the individuals involved, are prohibited by law in Michigan" (Human Rights Campaign). This makes surrogate agreements unenforceable, allowing for the surrogate mother, like Ms. Baker, to receive custody the child or children.
Surrogacy, in the medical world, is defined a method of reproduction where a woman agrees to become pregnant, carry, and deliver a child for a person or couple who then adopts or takes legal custody of the child after the child is born. She may or may not be the child's genetic mother, because in some surrogacy cases, the woman becomes pregnant by a medical procedure where an embryo was implanted inside the surrogate mother. Due to these different situations, there are different surrogacy categories:
1. Traditional Surrogacy: The surrogate is pregnant with her biologically child but the mother is not going to raise the child. The child is conceived through sexual intercourse, or artificial insemination (method of placing the sperm into the reproductive tract of the surrogate mother). The child will be raised by the biological father and possibly his spouse or partner. In cases where two females or a single mother is going to receive the child, a sperm donor may be used.
2. Gestational Surrogacy: The surrogate is not biologically related to the child. She becomes pregnant through an embryo transfer. The surrogate mother is called the gestational carrier.
The surrogacy is then further categorized to be commercial or altruistic:
1. Commercial Surrogacy: the surrogate is paid a fee to bear and deliver the child and all other expenses that are related to the pregnancy are paid for by the intended couple.
2. Altruistic Surrogacy: the surrogate is paid only for expenses that are related to the pregnancy.
When it comes to public policy, the practice of surrogacy motherhood is not clearly covered under the existing law. The states are split among those who have statutes, some prohibit it or make the agreements unenforceable, or states permit the agreements. During surrogacy cases, courts are faced having to decide the verdict based on "the best interest of the child, the right of the birth mother, the genetic link between the child and the genetic parents, and the intended of the couple who entered the surrogacy contract to become parents" (ACOG)
Laws regarding surrogacy differ from state to state, and in a lot of states the issue has not become an issue and the law has not been reviewed. Not all the states follow Michigan's policy to prohibit surrogate agreements. Michigan and Washington focus on the interests of the child and make custody determinations on a case-by-case basis, in order to make sure the child is receiving the best living conditions possible. "In New Hampshire and Virginia, laws presume that the contracting (intending) couple are the legal parents, but give the surrogate a period of time to change her mind. In North Dakota and Arizona, the surrogate and her husband are the legal parents of the child. Arkansas, Florida, and Nevada are the only states that allow surrogacy contracts. These states permit the intended parents named in the contract to be the legal parents. In Florida and Nevada, the surrogacy laws apply only to gestational surrogacy, where the egg used is not the surrogate's. Arizona, the District of Columbia, Kentucky, and Utah all have complete bans on surrogacy."(Law Encyclopedia)
In the 1980s, surrogacy policy gained national attention when the Baby M case in New Jersey was reported by the media. In 1984, the Stern family hired Mary Beth Whitehead for $10,000 to be artificially inseminated with Mr. Stern's sperm and bear the child for the duration of the pregnancy. After the baby was born, Whitehead changed her mind about giving the Stern's the baby and ran away to Florida with the baby and the $10,000. In 1987, the New Jersey Superior Court took away all parental rights from Whitehead and allowed the baby to be adopted into the Stern family and gave the Stern family full custody rights. A year later the court reversed their decision and "declared the [surrogate] contract unenforceable but allowed the Sterns to retain physical custody of the child." Whitehead received visitation rights back, and the Stern's adoption was voided. This decision "voided all surrogacy contracts on the ground that they conflict with state public policy," but voluntary surrogate agreements are still permitted.
This case started a chain reaction for state legislations and states around the nation began to pass laws regulating surrogate motherhood. "Michigan responded first, making it a felony to arrange surrogate mother contracts for money and imposing a $50,000 fine and five years' imprisonment as punishment for the offense"(Law Encyclopedia). In 1989, the American Bar Association, created alternative model laws, intended to guide states regarding surrogate motherhood policy to: legalize the practice and make surrogacy contracts enforceable in court, or, enforce the contract of commercial surrogacy. (Law Encyclopedia) These cases would "require preapproval by a court in a process that would include a home study" to minimize the families who are not suitable of rearing children (New York Times). Today, "New Jersey permits only uncompensated gestational surrogacy agreements (in which the surrogate mother is not the biological contributor of the egg). The issue of surrogacy agreements involving lesbian, gay, bisexual or transgender individuals has not yet been considered by the courts"(Human Rights Campaign).
California "is accepting of surrogacy agreements and would likely uphold agreements that include lesbian, gay, bisexual and transgender individuals. While the state has no statute directly addressing surrogacy, California's courts have used the state's Uniform Parentage Act to interpret several cases concerning surrogacy agreements"(Human Rights Campaign). One of the most influential cases in the country regarding surrogacy rights, Johnson vs. Calvert, was decided in California. In this case a "husband and wife brought suit seeking declaration that they were legal parents of child born of woman in whom couple's fertilized egg had been implanted"(Westlaw). Johnson reasoned that under the existing California Family Law code, proof of maternity can be determined by finding proof that the woman gave birth to the child or by proving the genetic relation. This court case found that "at the gestational surrogate had no parental rights to a child born to her, affirming a lower Court ruling that a gestational surrogacy contract was legal and enforceable"(surrogacy.com).
Case Specifics: (http://faculty.law.miami.edu/zfenton/documents/Johnsonv.Calvert.pdf)
In re Marriage of Buzzanca in 1998, the court extended the Johnson v. Calvert case. The question to the court was whether or "not a married couple who used both anonymously donated sperm and egg and used a surrogate to carry their child, were the parents of the child born six days after the husband filed for divorce. The husband, intended father, claimed that since he was not the biological father of the child, he was not the child's father and could not be forced to adopt." This case extended the Johnson v. Calvert ruling and reasoned that the intended mother was the mother "under existing California Family Code by virtue of her consent to ‘. . . a medical procedure which results in a pregnancy and eventual birth of a child.'" (Pinkerton) Today, California courts have consistently upheld the rights of the intended parents, regardless if their own genetic material was used. That is the exact opposite outcome of Michigan's policy.
Due to all the different laws, the American College of Obstetricians and Gynecologists have determined ethical responsibilities described for obstetricians and gynecologists who choose to participate in surrogacy agreements by: advising couples who are considering surrogacy, counseling penitential surrogate mothers, providing services for the pregnant surrogates, and offering technological assistant to the reproduction process. In cases such as the Kehoe's, states are forced to look at this issue. (ACOG)
Ms. Baker remains in custody of Ethan and Bridget and they will grow up under the Baker household. The Bakers have even picked out new names for the twins, the boy Peyton and the girl Dani. The Bakers believe, "it is a way to leave the past behind" them (Saul). If the Kehoe's lived elsewhere in the United States they may still have custody of Ethan and Bridget, but since Michigan law does cannot enforce surrogacy agreements, the chances of them gaining custody after Ms. Baker took them back was very slim.
Because Michigan is one of five states where all surrogacy contracts are not recognized the court did side with the Bakers. Petyon and Dani now live with the Bakers permanently, and the Kehoe's are left childless.
· Saul. New York Times:
· Human Rights Campaign: http://www.hrc.org/issues/parenting/surrogacy/surrogacy_laws.asp
o Michigan HCR : http://www.hrc.org/issues/parenting/surrogacy/1089.htm
· Law Encyclopedia: http://www.answers.com/topic/surrogate-mother
· American Surrogate Society:
· Pinkerton: http://www.surrogacy.com/legals/article/calaw.html
· West Law. http://faculty.law.miami.edu/zfenton/documents/Johnsonv.Calvert.pdf
· Juju Chang, Suzan Clarke, and Jennifer Pereira -ABC http://abcnews.go.com/GMA/Parenting/twins-meant-adoption-surrogate-mom/story?id=9536107&page=1