GRAND RAPIDS, MI — A decades-old anti-surrogacy law that hasn’t kept pace with advances in fertility treatment means a Michigan couple will have to go through the expensive and time-consuming process of adopting their 2-week-old biological twins.
No one doubts that Jordan and Tammy Myers are the biological parents of Eames Alexander and Ellison Erin Jewel Myers, born Jan. 11 at Helen DeVos Children’s Hospital in Grand Rapids, Michigan.
Lauren Vermilye, the woman who volunteered to be the couple’s surrogate mother for pure, altruistic reasons, has made no claims on the babies.
Still, she’s listed on the children’s birth certificates as their mother, and her husband, Jonathan, is listed as their father.
And that’s what counts, judges have twice ruled in Kent County Circuit Court. Michigan’s 1988 Surrogate Parenting Act gave the court no choice. The law, which responded to the emotional drama behind headlines about broken surrogacy contracts, bans paid surrogacy outright; and it declares that even surrogacy contracts with no payment involved are “contrary to public policy” and “void an unenforceable” in court.
In December, now-retired Kent County Circuit Judge Daniel Zemaitis acknowledged “genuine concerns about the present-day wisdom of the 1988 Surrogate Parenting Act,” but said it’s the Legislature’s job, not the court’s, to decide if it should be changed. He said he would not “ignore by judicial action the clear language of [the law],” MLive/The Grand Rapids Press reported.
Earlier this month, after a second judge denied their request to obtain legal rights, the Myerses decided to speak up.
“We have been radio silent about this entire process knowing that it is a sensitive matter; however, it is something we can no longer keep private,” Tammy Myers wrote on her blog, “My Personal Pink Time.” Through the blog, she chronicles her battle against breast cancer — the reason she and Jordan turned to surrogacy to expand their family.
Their daughter, Corryn, was 2 when the couple started talking about expanding their family. Instead of confirmation of pregnancy, Tammy was diagnosed with breast cancer. She was 33 at the time and thought she was too young. Her first question: “How long do I have?” Tammy told CBS News correspondent Nikki Battiste.
“And my second question was, can I have more children?” she recalled to Battiste. “Can I still have another baby?”
The answer wasn’t the one the couple hoped for. Harvested eggs were frozen, and in 2019 — 18 rounds of chemotherapy, 28 rounds of radiation and more than 25 surgeries later, according to court documents — they began looking for a surrogate.
They met Lauren Vermilye, who lived near the Myerses’ home in Grand Rapids, and she volunteered to be the couple’s surrogate at no charge. The married mother of two had lost her father to pancreatic cancer 11 years before, Vermilye told CBS News.
“And just, I know what cancer can take away from you,” she told the network. “And just to be able to help bring that hope back to somebody just really, really appealed to me and my husband.”
Everything was going as planned until the couple tried to sort out their legal rights as parents.
A lot has changed in the four decades since Michigan lawmakers declared surrogacy contracts unenforceable. Back then, traditional surrogacy — typically, a woman’s eggs are fertilized in vitro with the father’s sperm — gave hope to parents who couldn’t conceive. But increased use of surrogacy also gave birth to a wave of lawsuits.
Gestational surrogacy, which is the route the Myerses went in expanding their family, has far fewer legal complexities. Typically in these cases, the mother’s egg is transferred to the surrogate and fertilized in vitro with the father’s sperm, giving both parents genetic ties to the baby.
The U.S. Centers for Disease Control and Prevention said the number of gestational carrier births increased from 727 in 1999 to 3,432 in 2013. During that period, 18,400 infants were born in 13,380 deliveries by gestational carriers, according to the American Society for Reproductive Medicine.
The Myerses never figured on getting legal rights to their twins being this difficult.
The law “makes the gestational carrier process a little trickier in Michigan but not impossible in most parts of the state,” Tammy Myers wrote on her blog, noting that in other parts of Michigan, judges grant pre-birth orders to couples like her and Jordan when:
The intended parents are married;
The intended parents and the gestational carrier, each with independent legal representation, agree on legal rights; and
When there is a genetic link between at least one parent and the baby or babies.
“Despite the outdated laws in Michigan several judges across the state have even declared both of the biological/intended parents to be the legal parents in a pre-birth order under the compassionate surrogacy case,” she wrote. “This is what we had hoped would happen in our case. Sadly it did not.”
The Myerses’ attorney says that since 2005, there have been at least 72 similar cases in which Michigan judges have signed pre-birth orders designating the intended parents at the legal parents upon the child’s birth, with no adoption necessary.
Their next step was for Jordan, as a biological parent, to obtain his legal rights to the babies under the paternity act of 1956. That was denied, too.
In his ruling, Kent County Circuit Judge Scott Noto said that “what the parties essentially are asking this Court to do is validate and enforce a contract that the Michigan Legislature has expressly declared void and unenforceable as a matter of public policy.”
To have declared Jordan the father under the paternity act, he would have had to “allege there exists a child which the Court has determined to be born (or conceived) during the natural mother’s marriage but is not the issue of the marriage. No such determination has previously been made by the Court.”
The ruling floored the couple.
“I just sobbed. It’s all I could do. I don’t understand it. It doesn’t make any sense,” Jordan Myers told CBS News.
“Above all, I truly believed that there wasn’t a judge on the planet that could listen to our story and heartlessly deny us rights to our babies,” Tammy Myers wrote on her blog. “I didn’t think it was possible for a judge to knowingly make it harder for a loving family to gain legal rights to their own biological children when there is no one fighting them for the rights in question.”
The couple must now adopt their twins. Until that happens, they can’t even put the babies, who likely will be hospitalized for a while longer was because they were born prematurely, on their insurance plans. They’ll also incur more legal expenses.
“It’s insane because of this archaic law that just doesn’t have any guard rails and what parents in a situation like ours are able to do,” Jordan Myers told news station WNEM.
So they’re speaking out, taking their private and emotional journey public in hopes of getting the law changed.
“I think we are finally at a point that people are realizing how ludicrous,” Melissa Neckers, the couple’s attorney, told WNEM. “And it’s truly affecting people’s lives, and somebody needs to do something about it.”
Neckers, who last year represented two western Michigan women who encountered the same issues when they used gestational surrogates, told news station WOOD that “it’s offensive to have to adopt your own biological children.”
Neckers told CBS the Myerses “knew there was a risk” under Michigan’s outdated surrogacy laws, “but they really believed that no judge would actually hear their story, which had so many additional layers of heartache and trauma, that a judge wouldn’t just want to do the right thing.”
Two other states — Nebraska and Louisiana — have similarly strict surrogacy laws.