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Exploiting the vulnerable

Michigan surrogacy legislation fails to protect women and children

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Exploiting the vulnerable
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In November, Michigan’s House of Representatives voted to pass the state’s first assisted reproduction and surrogacy parentage act (HB 5207). Legalizing all forms of commercial surrogacy, the act reversed decades of precedent and is yet another example of lawmakers putting adult preferences over children’s need to know his or her biological parents.

As with many bills, the devil is in the details. HB 5027 isn’t about providing restorative care for infertile couples. It also isn’t about “altruistic,” or unpaid, surrogacy, which is already legal in Michigan.

No, HB 5027 is about commercial surrogacy, which refers to a legal contract in which anyone—including those who could conceive and bear children on their own—can hire a woman to gestate their child for a fee. This express route to predetermined parenthood might benefit adults who use assisted reproductive technologies like in vitro fertilization or egg/sperm donors. But their gain comes at the expense of surrogates, who are often used strictly as a vehicle for someone else’s intended goal of creating a child. It also hurts children, many of whom will never know the woman that gave birth to them.

Even if a child did want to learn who gave birth to him, he wouldn’t be able to find out on his birth certificate. That’s right, Michigan’s new law requires birth certificates to list the intended parents as the only parents of the child, even if a surrogate gestates and births the baby.

Prior to last month’s vote, the 1988 Surrogate Parenting Act deemed all surrogacy contracts “void and unenforceable” in Michigan, just as they were throughout much of the country. But in 2022, Michigan passed the “Right to Reproductive Freedom” constitutional amendment. It stated that “every individual has a fundamental right to reproductive freedom, which entails the right to make and effectuate decisions about all matters relating to … infertility care.” Passed presumably to protect abortion, the amendment also enabled lawmakers to pass this surrogacy act, which leaves Nebraska and Louisiana as the only two states that refuse to enforce commercial surrogacy contracts.

That’s bad news. Surrogacy laws like Michigan’s exploit women by reducing them to “rent-a-womb” service providers. These laws seek, for all intents and purposes, to erase biological mothers (egg donors), biological fathers (sperm donors), and surrogate mothers from a child’s life.

This means that, in effect, Michigan’s “reproduction” law ignores the well-being of the child. The surrogate mother, far from the mere “carrier” that the law reduces her to, is the first mother that this child will ever know. In a recent reddit discourse, a surrogate mother begged the intended parents to let her keep the child. The surrogate mother, who had known she could not keep this child, had formed an intimate bond with the child. If she had trouble distancing herself from the baby, how can one expect the baby to bond any less?

From the child’s experience, the surrogate is his mother.

In utero, the child learns the surrogates’ voice, the smell of her body, and the taste of her amniotic fluid, which shares its scent with her initial breast milk. From the child’s experience, the surrogate is his mother.

The two share life-enhancing DNA, too. In one case, leftover fetal cells from a woman’s own aborted baby helped rebuild a portion of her cancer-ridden liver two decades later. Lifesaving fetal cells from the preborn child remained with the mother, even while she chose a procedure to kill the child.

The bill does not account for any of this, much less the elevated risks associated with surrogate pregnancies. Surrogates are more likely to have preeclampsia, gestational diabetes, hypertension, pre-term births, and c-sections. Surrogate mothers may also experience a longer recovery period. These complications pose serious threats to the life and wellbeing of both the surrogate mother and her child.

Section 301 of Michigan’s surrogacy law does provide some meager standards. For instance, the surrogate mother must be at least 21 years old, have previously given birth to at least one child, and pass a mental health assessment. But the text lacks an enforcement mechanism or clear recourse for victims if these requirements are violated.

The legal requirements for intended parents are the same, minus the live birth of a child. That’s it. Michigan’s law creates the legal right to buy gametes and rent a surrogate mother’s womb to create a child, and it doesn’t even require a background check or a home visit.

This is far less than even a basic adoption agreement. Without basic safeguards in place, this law leaves children vulnerable to abuse. Anyone, with enough money to afford it, can use this technology to create a child.

Michigan’s surrogacy act also exploits women. Unlike adoption, which can turn tragedy into a blessing, surrogacy laws like the one just passed in Michigan encourage women to unnaturally distance themselves from the child they bear. This surrogacy act turns both children and surrogate mothers into mere means to someone else’s fertility goals.

Emma Waters

Emma Waters is a research associate in The Heritage Foundation’s DeVos Center for Life, Religion and Family.

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