Michigan prepares to open Pandora’s box on surrogacy

Michigan’s legislature is back in session.  Among the bills that may be fast-tracked is a package to allow baby-buying and selling — i.e., “commercial surrogacy” — in the Great Lakes State.  The package was rammed through the lower chamber by a two-vote margin last Fall and may soon appear on the Senate calendar. 

In the effort to bring commercial surrogacy to Michigan, there are more questions than answers.  Since the legislation redefining what “parent” means was ramrodded through the lower house in 16 days, from introduction to final passage (56-53), I guess sponsor Samantha Steckloff is Michigan’s Nancy Pelosi: just “pass the bill so you can find out what’s in it.” 

Fool me once, shame on you; fool me twice, shame on me.

Can a minor be a surrogate?  On the surface of Steckloff’s bill, no.  HB5207 stipulates the surrogate be 21 or older.  But many of the same folks who want to bring you commercial baby sales were the ones who advocated in 2022 for abortion on demand as a fundamental “right” under Article I, §28 of the Michigan Constitution.  That “right” is absolute and unqualified: the “fundamental right to reproductive freedom” is not age-limited.  Nor does it restrict that right to self-exercise: if you want to reproduce for others, that’s arguably your “choice.”  Even if the age limit stays in Steckloff’s bill, will it be found constitutional?

In any event, if you are the parent of an unemancipated minor, don’t expect to have any consent or even notification role if your daughter decides to be a surrogate.  At best, she will be consulting with a Planned Parenthood or ACLU lawyer to wipe out this bill’s nominal barriers, not you.

Michigan law since 1988 makes arranging a surrogacy contract with an unemancipated minor or a developmentally disabled female a felony punishable by a $50,000 fine and/or five years in jail (Michigan Penal Code, §722.857).  In the current push to legalize commercial surrogacy, the Michigan lower house November 9 repealed that ban, 56-53.  If promoters of commercial surrogacy were serious about their age and medical requirements for surrogates, why did they repeal the penalties?  Writing supposed limits into law while removing any penalty for violating them is talking out of both sides of one’s mouth.  So is the public policy of Michigan to discourage minors and developmentally disabled women from being surrogates…or not?

Why are we not hearing about this?

Let me suggest that one reason we are not hearing about it is that it would publicize various dirty little secrets of Michigan Democrats.  Section 722.903 of the Michigan Penal Code prohibits performing an abortion on a minor child without parental consent.  Michigan Democrats have tactically avoided outright attempts to repeal that requirement, aware of the political firestorm it could ignite, one that could consume the rest of their agenda and their legislative majority.  It’s generally assumed they hope quietly to repeal the law in the post-November lame duck session or let a state court do their work for them by declaring the ban unconstitutional under the new state “right to reproductive freedom.”  So let’s go through the kabuki theater of pretending there are age limits in place that either a late night in Lansing or some state judge (who contributes to and/or represented Planned Parenthood) will eliminate.  The honest truth is that, in the end, you should expect that minors will one day be able to be surrogates absent parental consent in Michigan. 

What about the developmentally disabled?  Since developmentally disabled persons can become parents, there’s no doubt an argument will be made that impairing their right to contract as paid surrogates would constitute “discrimination” against them and their agency.  Never mind that most developmentally disabled persons are not so financially secure, and that the monetary incentives could be appealing.  Never mind that the power dynamics between the average developmentally disabled person and the average person able to hire a surrogacy lawyer are mismatched in favor of the latter.  Never mind that — in contrast to egg donors — inasmuch as the surrogate is basically treated as an animate incubator adding nothing to the genetic heritage of the child, there would be less hesitation about using them.  Never mind that, given the dynamics of the surrogacy relationship, the likely purpose of the “medical evaluation” and the “mental health consultation” Steckloff’s bill requires of surrogates more likely will focus on whether she will successfully deliver the ordered goods (the baby).  Any fair-minded person would recognize how rife the potential for exploitation appears to be.  We’ll politely leave aside the ethically relevant question of determining capacity for informed consent.  We’ll just skate past all that by insisting you are “discriminating” by even asking the questions.

Finally, while it seems macabre, it should be noted: what about “dead” surrogates?  Because perinatal medicine involves two patients — mother and child — there have been instances where a mother’s injuries have caused her to be declared brain-dead but whose physiological functioning was artificially maintained (e.g., by ventilator) to enable her baby to reach viability and thus be delivered.  (Before some people start donning their Handmaid costumes, note that this has also happened when fathers and families want to at least give the baby a chance at life).  Just as we currently allow people to donate organs upon death (and sustain the donor’s body by artificial life support prior to the organ’s harvesting), would there be any prohibition on donating a woman’s body for use as a surrogate?  Granted, temporary life support is technologically less daunting than sustaining a pregnancy, but if there is opportunity, who are we to stand in the way of “medical progress”?  U of M has a quality medical school, and research in this field would be highly lucrative. 

This is not fantasy.  Anna Smajdor of the University of Oslo (Norway) published an article in 2022 advocating “whole body gestational surrogacy” involving physiologically sustained brain dead women.  Bioethicists have already debated whether parents can harvest a deceased child’s gametes to produce grandchildren.  Posthumously obtained gametes could also help increase supply of limited “raw material” to help surrogates have “the babies they so much want.”  Do state laws even envision such scenarios? 

Using the “dead enough” (to borrow Dr. George Mychaskiw’s phrase term describing those whose organs we covet) as surrogates would really reduce labor costs, a grotesque marriage of altruistic surrogacy to commercial availability. 

One can sympathize with those who want children.  But buying a baby — or the “parts” to make and deliver one — pose profound questions about our humanity.  Commercial surrogacy, which puts a heavy financial incentive on the scale, distorts the discussion.  But the bottom line remains: does Michigan want surrogates — paid or unpaid — who are minors, developmentally disabled, or maybe even dead?

Image via Free Range Stock.