Recently I read an interesting article of a young man who knew he was conceived with the assistance of an anonymous donor, and after a home genetic test learned that he had 32 half siblings. There are similar stories online such as an anonymous donor who now invites his many, many donor children to a lake retreat each summer; some siblings form Facebook groups that keep growing and growing with new siblings as more people perform DNA tests.
The stories caused me to consider how the influx of Assisted Reproductive Technology (ART) and Surrogacy impacts child custody rights.
News articles report surprises and ethical dilemmas on a nearly weekly basis. Children tend to know that they were conceived by a sperm donor, but with the availability of DNA testing such as 23andme, they now also find their half siblings; they sometimes are able to find their biological father, the sperm donor, even though his contract provided that he was to remain anonymous.
In 2014, the State of Kansas sued a sperm donor for child support when the lesbian parents of the child separated. The ruling was reversed in 2016 after a very expensive and long drawn out legal battle. In 2017, a mother sued the sperm donor for child support when the father had minimally remained in contact with the two children and had contributed to a college fund for the children.
In Michigan, when an anonymous donation of sperm or eggs is used, generally no parental rights are created nor is responsibility related back to the donor. The donor banks require the donor to waive all parental rights and he is removed from all responsibility. The donor is only known by a number. Many states have developed laws protecting the donor, but Michigan lags far behind. Thus, when a donor is known, and with the limited laws in Michigan, some legal trouble could be lurking for donors and intended parents.
Similar problems may be waiting for surrogates. Michigan established the Michigan Surrogate Parenting Act in 1988 and it was the first such Act in the United States.
When it comes to surrogacy, let’s clarify some terms first. Traditional surrogacy arose in the late 1970s. With traditional surrogacy, the surrogate (the woman who carries and gives birth to the baby) also provides the egg to be fertilized with the sperm from the intended father or sperm donor. Traditional surrogacy has fallen out of favor because of the biological connection between the surrogate and the child. Gestational surrogacy occurs when a woman agrees to carry and give birth to a child, but the egg and sperm can be from the intended parents or donors.
The Michigan Surrogate Parenting Act prohibits all forms of payment for the surrogate, and although surrogacy contracts without compensation are allowed in Michigan, they are not enforceable. What does this mean?
A surrogate mother may change her mind, even though the baby she is carrying is not biologically hers. When this occurs, the Michigan Child Custody Act will determine which parent(s) will get custody of the child. Of course, if the surrogate mother is awarded custody of the child, Michigan law provides that a biological parent has a duty to financially support his or her child; thus, in essence, that means that the biological parents may end up paying child support to the woman who broke the contract and kept the child that biologically does not belong to her.
This may be our first blog in which we don’t provide answers; the law does not provide answers. It’s a mess. Michigan law has not caught up to the available technology. Even so, when parents are faced with a breach of a surrogacy agreement, they really need to retain an attorney as soon as possible. Call our office at (616) 285-0808 if you are faced with a child custody dispute.
