Parentage Problem Solving for Families in the Age of Surrogacy

An article in the New York Times written by Maria Cramer and published on Jan. 31, 2021, titled Couple Forced To Adopt Their Own Children After a Surrogate Pregnancy could not have been more provoking, disturbing and timely because it highlights some of the hurdles heretofore faced by married couples (and individuals) in their efforts to add children to their family while utilizing the services of a surrogate mother. The article describes the plight of Jordan and Tammy Myers, a Michigan couple with an eight-year-old child, who now have newborn twins that were delivered by a surrogate. Two Michigan judges denied the Myerses’ requests to be declared the legal parents of their twins, despite affidavits from the surrogate and her husband, and from the fertility doctor, all attesting to the fact that the Myerses are the twins’ biological parents. “Michigan law does not automatically recognize babies born to surrogates as the legal children of their biological parents.” As a result, the Myerses are now engulfed in a formal adoption process, which included fingerprinting and which will also include “home visits by a social worker, personal questions about their own upbringing, their approach to parenting and criminal background checks.” In the interim, the surrogate and her husband are listed as the parents on the birth certificates of the twins, and “temporary permission” had to be given by the surrogate in order to enable the Myerses to take the twins to their home from the hospital where they were born.

The article also points out: “Under Michigan law, paying a woman to act as a surrogate is a felony punishable by up to five years in prison and a $50,000 fine,” and that “[a]ny agreement a woman makes to act as a surrogate and then relinquish parental or custodial rights to the child are ‘void and unenforceable’”. The only remedies available to the biological parents in Michigan require them to resort to court proceedings “to be recognized as the legal parents or go through the adoption process.” Similar problems have been faced by parents in other states with laws similar to Michigan’s, as have parents in the state of New York up to this point.