By Debra Nance
The desire to reproduce may be a natural instinct, but the ability to reproduce is not guaranteed. Problems in fertility have existed for centuries, and may have perpetuated the age-old use of surrogates. In fact, many believe that the use of surrogates can be traced back to the Old Testament. For example, some believe that Abraham and Sarah used Hagar, Sarah’s handmaid as a surrogate. Others have said that Rachel and Isaac asked Bilbah to bear a child for them.
Medical Advances
Today, thanks to advances in medical technology, surrogacy options exceed our wildest imaginations. The science of Assisted Reproductive Technology (“ART”) makes a host of cutting-edge surrogacy arrangements available to virtually anyone who wants to parent a child. Advances in reproductive medicine have also spawned new legal terminology as well. Terms such as traditional surrogate, gestational carrier and intended parent(s) are now used to describe the parties involved in various reproductive arrangements.
With the expert guidance of a specialized medical professional a number of options are available. For example a Surrogate can carry:
- the Surrogate’s egg fertilized intrauterine using the sperm of the Intended Father;
- the Intended Mother’s egg fertilized in vitro using the sperm of the Intended Father;
- a donor egg fertilized in vitro using the sperm of the Intended Father; or
- the Intended Mother’s egg fertilized in vitro using donor sperm.
All such arrangements have enabled many couples (or singles) to become parents when a close friend or relative benevolently agrees to carry the fertilized ovum to term. However, with so many reproductive options available, a number of legal questions arise. When a child is born to a Surrogate, who is the legal mother? Who is the legal parent when a donor egg or donor sperm is used? Equally important, who makes the decision as to the legal parent(s), how is the decision made, and at what stage of the pregnancy is legal parentage determined?
Legal Advances
In order to answer these questions, the legal community has also evolved. In response to the advances in ART, the law has established processes to determine parentage in various surrogacy arrangements. Declarations of Parentage, Declarations of Paternity, or Declarations of Maternity have become the preferred legal processes (i.e., uncontested lawsuits) to adjudicate parentage and allow the Intended Parent(s) to obtain legal parental rights.
Upon completion of such litigation, the court enters an order declaring the Intended Mother and Father to be the legal parents and directs the hospital and the Bureau of Vital Records to list them accordingly. A certified copy of this order is issued to the parties and submitted to the hospital before the birth, or at the time of labor and delivery. When the Surrogate acts as a gestational carrier, her name is not on the birth certificate.
Legal Ramifications
Declarations of Parentage involving paternity or maternity are amicable lawsuits, but lawsuits nonetheless. Therefore, the parties should be represented by counsel. Keep in mind that the pleadings filed in these lawsuits, as in most civil actions, are public records. In addition, surrogacy arrangements in Michigan are governed by the Surrogacy Parenting Act at MCL 722.851. If you are considering some form of surrogacy and have additional questions regarding the legal aspects of obtaining a Declaration of Parentage please contact the author.
For further information regarding these matters, please contact Ms. Nance at 248.740.5686 or click here to send an email.
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