Surrogacy Laws Vary By State

By Gina Barton of the Journal Sentinel
jsonline.com, August 7, 2012

In Ohio, a surrogate and an egg donor both sued for custody of triplets after the genetic father and his fiancée failed to visit the babies in the hospital for several days.

In New Jersey, a woman who had served as a surrogate for her brother and his same-sex partner fought to raise the resulting twin girls – even though they had not been conceived with her eggs.

And in India, a set of twins ended up in an orphanage after DNA testing showed they had no genetic link to a Canadian couple who had arranged a surrogate pregnancy.

In Wisconsin, there’s no telling what the outcome of cases like these would be.

That’s because Wisconsin has no laws on surrogacy.

That’s a far cry from two nearby states: Michigan, where hiring a surrogate is a crime, and Illinois, which has perhaps the most liberal law in the nation allowing surrogacy. Some who work in the field believe the lack of regulation here is positive, while others think it puts families on dangerous legal ground.

“It depends,” said Lynn Bodi, a Madison lawyer who co-owns a surrogacy agency. “The problem is: If there was a law, we don’t know exactly what it would say.”

Judges here have dealt with surrogacy on a case-by-case basis, resulting in some positive case law, according to attorney Melissa Brisman of Reproductive Possibilities, the largest surrogacy agency on the East Coast.

For example, Wisconsin judges have not forbidden surrogates from being paid. A 2010 state Supreme Court decision, the first of its kind in the nation, requires medical insurance plans with pregnancy benefits to cover prenatal care and delivery for surrogates.

And some judges here have allowed the names of those who hired the surrogate to be placed on the birth certificate without requiring her to give up parental rights as part of an adoption or other legal proceeding, Brisman said.

But other judges have not, according to attorney Steven Snyder, chair of the American Bar Association’s committee on assisted reproductive technologies. While Wisconsin law includes a mechanism for determining paternity through DNA testing, there is not a similar statute to establish maternity, he said. The law here assumes the woman who gives birth is the mother. Attorneys who believe otherwise must make their arguments in court.

“The laws were based on a universe where the only way to have children was the old-fashioned way,” Snyder said. “We have a rainbow of alternatives today in how to get pregnant and how to have a child, and the laws have not kept up.”

That leaves most of the legal issues surrounding surrogacy up to each judge.

To reduce the likelihood of problems, the bar association drafted a model act governing assisted reproductive technology. The model act, approved by the association in 2008, covers everything from who can donate eggs to what happens to embryos in the event of a death or divorce. It is gender neutral and applies to heterosexual couples, gay couples and single people.

For surrogacy, the model act mandates safeguards such as medical insurance and mental health evaluations. It lists requirements for both the surrogate and for those hiring her. Surrogates, for example, must be at least 21 years old and must have given birth to at least one child. Those who want to hire one must be unable to safely carry their own children.

“Two-thirds of the states or more have laws that fail to address the majority of the issues set forth in the model act,” Snyder said. “People can’t rely on having their parentage established, and they have no certainty as to the . . . outcome of the proceeding.”

Persuading states to adopt comprehensive legislation has proved an uphill battle, he said. So far, not a single state has adopted the model act. In Snyder’s home state of Minnesota, the legislature passed a bill based on it in 2008, but then-Gov. Tim Pawlenty vetoed it.

In his veto letter, Pawlenty said the bill did not adequately address the rights of surrogates, whom he said should be encouraged to volunteer rather than being paid.

“The bill also fails in any manner to recognize or protect the life and rights of the unborn child,” he wrote. “The unborn child is treated throughout the bill as a chattel, the rights over which are set and enforced under the terms of a contract.”

Michigan legislators had similar concerns when they passed a law banning paid surrogacy in 1988. The law targeted Michigan attorney Noel Keane, who had matched surrogate Mary Beth Whitehead with William and Elizabeth Stern. The result was the infamous “Baby M” case, which ensued after Whitehead, who was the genetic mother of the child, changed her mind.

When the bill was passed, then-state Sen. Connie Binsfeld (R-Traverse City), its primary sponsor, told The Associated Press that it was “the only answer to protect children.”

Today, unlike in the Baby M case, most surrogates have no genetic tie to the baby.

Regardless, both entering into a paid surrogacy contract and facilitating one remain crimes in Michigan.

In Illinois, lawmakers also said they wanted to protect children, but they felt the best way to do so was to legalize surrogacy and regulate it. The Illinois law, which took effect in 2005, includes many of the same standards as the ABA proposal. It also expressly permits payments to the surrogate and states that if certain requirements are met, those who hire her have parental rights automatically upon the child’s birth.

“It is time for us to join the 21st century. Make sure our children are protected and cared for,” state Rep. Barbara Flynn Currie (D-Chicago), a co-sponsor of the measure, said during a 2004 hearing.

State Rep. William Black (R-Danville) agreed.

“I think it makes eminent good sense,” he said at the hearing. “I would hope that it eliminates a lot of the legal action and the heartbreak of legal action after the fact.”