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As Michigan legalizes surrogacy, here's how families found ways around the ban

Eric Portenga and Kevin O'Neill with daughters Sylvie, Robin and Parker O'Neill celebrating the girls' 2nd birthday in Sept. 2023. The babies' surrogate lived in Ohio because of Michigan's laws, that are changing now.
The Portenga-O'Neill family
Eric Portenga and Kevin O'Neill with daughters Sylvie, Robin and Parker O'Neill celebrating the girls' 2nd birthday in Sept. 2023. The babies' surrogate lived in Ohio because of Michigan's laws, that are changing now.

Updated April 2, 2024 at 10:00 AM ET

The first time Tammy and Jordan Myers held their twins, the premature babies were still so fragile, their tiny faces were mostly covered by oxygen masks and tubing. Their little hands rested gently on Tammy's chest, as the machines keeping them alive in the neonatal intensive care unit in Grand Rapids, Michigan beeped and hummed around them.

It was an incredible moment, but also a terrifying one. Because a court had just denied the Myers' parental rights to the twins, who were born via surrogate using embryos made from Jordan's sperm and Tammy's eggs (which had been frozen before Tammy underwent treatment for breast cancer.)

"In the early hours of their lives, we had no life saving medical decision-making power for their care," Tammy Myers told Michigan lawmakers at a state senate committee hearing in March.

Tammy Myers holds her newborn son, Eames, during her premature twins' NICU stay. The Myers had to spend nearly two years legally adopting their biological twins, due to Michigan laws.
/ The Myers family
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The Myers family
Tammy Myers holds her newborn son, Eames, during her premature twins' NICU stay. The Myers had to spend nearly two years legally adopting their biological twins, due to Michigan laws.

Instead, the state's surrogacy restrictions forced the Myers to legally adopt their biological twins, Eames and Ellison.

"Despite finally being granted legal parenthood of our twins almost two years after they were born, our wounds from this situation remain raw, casting a long shadow over the cherished memories that we missed," Myers told lawmakers, her voice catching.

Michigan was the only state that still had a broad criminal ban on surrogacy. Many families say that left them in legal limbo, forcing them to leave the state to have children, find strangers on Facebook who would carry their child, or, like the Myers', need to legally adopt their own biological children.

On Monday, Governor Gretchen Whitmer signed legislation repealing that criminal ban and legalizing surrogacy contracts and compensated surrogacy. But it's raising fears among conservative and religious groups, who echo Pope Francis' concerns that surrogacy exploits women and makes children "the basis of a commercial contract."

Michigan helps to pioneer modern surrogacy - then bans it

Michigan law made it a felony to arrange to pay a surrogate, and declared surrogacy agreements "void and unenforceable." The ban goes back to 1988, when the state's involvement in the infamous "Baby M" case motivated legislators to crack down on the early surrogacy industry.

William Stern holds his daughter, known as Baby M. The notorious 1986 case led to many states passing laws limiting surrogacy. A Michigan lawyer named Noel Keane wrote the surrogacy contract for the Sterns.
/ Bettmann Archive
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Bettmann Archive
William Stern holds his daughter, known as Baby M. The notorious 1986 case led to many states passing laws limiting surrogacy. A Michigan lawyer named Noel Keane wrote the surrogacy contract for the Sterns.

At the time, Michigan was home to "the world's largest surrogate clinic, a suburban Detroit agency run by the attorney who arranged for the birth of Baby M," according to theLA Times.

That attorney, Noel Keane, arguably pioneered the concept of surrogacy contracts in the U.S., with his family later attributing the births of some 600 children to his work. "Many were named for him by grateful parents. He compiled scrapbooks filled with their photographs," his obituary in the New York Timesreads.

But in 1985, William and Dr. Elizabeth Stern, a well-off New Jersey couple, turned to Keane. Worried pregnancy would worsen Elizabeth's multiple sclerosis, William, a "sensitive, even tender, biochemist" felt a "compelling need for a child to continue his family bloodline" after "all other relatives were killed in Nazi concentration camps," according to coverage in the New York Times at the time.

Keane's agency connected them to a woman named Mary Beth Whitehead, a working-class, married mother of two who responded to a surrogacy ad in the paper. Psychological testing indicated "that she would have trouble giving up the baby," but neither the Sterns nor the Whiteheads saw that report, according to the Washington Post.

Instead, Whitehead agreed to "be artificially inseminated with Bill's sperm and, if she became pregnant, to give the baby to the Stems to raise," according to reproductive rights scholar and Columbia Law school professor Carol Sanger. The Sterns agreed to pay Whitehead $10,000.

But within days of Baby M's birth in 1986, Whitehead changed her mind, eventually fleeing with the child to Florida. Thus began a series of dramatic, breathlessly-coveredcourt battles in a case that "set the stage for debates about the commoditization of children, women's reproductive autonomy, and the meaning of family in an era of technological possibilities," Sanger wrote.

Eventually, after multiple court battles, Baby M would be raised by the Sterns, and Whitehead was also granted parental rights.

Several states passed laws limiting surrogacy in the wake of the case. But for Michigan, it hit particularly close to home. "I would hope this would strongly discourage any operation he (Keane) has here. That is certainly the intent," state Sen. Connie Binsfield told The Washington Post in 1988.

Painful legal battles over babies continue in the state

But over the years, as reproductive technology advanced, most states passed laws permitting and regulating surrogacy. But Michigan did not, said Courtney Joslin, a professor at UC Davis School of Law who specializes in family law.

"Criminal bans, or even civil bans, don't end the practice," she said. "People are still engaged in surrogacy, and it's becoming more clear that the effect of a ban is just to leave the parties without any protection. And that includes the person acting as a surrogate."

In 2009, a West Michigan couple reportedly had to surrender custody of their twins after their surrogate decided to keep the babies, claiming she hadn't been aware of an arrest and mental health issue in the intended mother's past. And in 2013, a surrogate from Connecticutfled to Michiganto give birth, knowing state law would give her parental rights. She and the intended parents had disagreed over whether to terminate the pregnancy following the discovery of major fetal abnormalities.

The Myers family, however, thought they would be able to avoid any protracted legal fights. They had the full support of their surrogate, Lauren Vermilye, a kind stranger who'd volunteered to be their surrogate after seeing Tammy's posts on Facebook. Yet even with Vermilye and her husband, Jonathan, advocating that the twins belonged to the Myers, Michigan judges denied the Myers' request for a pre-birth order giving them parental rights.

Tammy and Jordan Myers with their surrogate, Lauren Vermilye, and her husband, Jonathan Vermilye. Lauren volunteered to be their surrogate, without compensation, after hearing about Tammy's breast cancer.
/ The Myers family
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The Myers family
Tammy and Jordan Myers with their surrogate, Lauren Vermilye, and her husband, Jonathan Vermilye. Lauren volunteered to be their surrogate, without compensation, after hearing about Tammy's breast cancer.

"As a devoted family already raising our kind, inclusive and gentle-hearted eight-year-old daughter, Corryn, we were forced to prove our worthiness through invasive psychological testing, home visits, and endless meetings to discuss our parenting plan to prove that we were fit to raise our twins, Eames and Ellison," Myers told lawmakers last month.

Opponents say there's "altruistic" surrogacy, and then there's "a contract for a child"

Legislators in Michigan's House of Representatives passed bills late last year to legalize compensated surrogacy and allow courts to recognize and enforce surrogacy contracts.

But as the legislation moved forward in recent weeks, several religious and conservative groups, and multiple Republican lawmakers, expressed concern.

Michigan's surrogacy laws haven't stopped so-called "altruistic" surrogacy in the state, said Genevieve Marnon, the legislative director of Right to Life of Michigan.

"However, current law does require a legal adoption of a child who is born of one woman and then given to another person," Marnon said at a state senate committee hearing in March. "That practice is child-protective, to prevent the buying and selling of children, and to ensure children are going to a safe home."

Michigan's ban on surrogacy is, in fact, "in keeping with much of the rest of the world," Marnon argued. Several European countries ban or restrict surrogacy, including Italy, which is now cracking downon international surrogacy. "India, Thailand, and Cambodia had laws similar to those contemplated in these bills, but due to exploitation of their women caused by surrogacy tourism, they changed their laws to stop that."

In January, Pope Francis called fora universal ban on surrogacy, "which represents a grave violation of the dignity of the woman and the child, based on the exploitation of situations of the mother's material needs," he said.

Rebecca Mastee, a policy advocate with the Michigan Catholic Conference, testified before lawmakers and said that while she acknowledged the suffering of people with infertility, surrogacy can exploit women and treat babies like commodities.

"At the core of such agreements is a contract for a human being," she said.

Supporters say new laws will offer more protections for surrogates, kids

"That made my blood boil, hearing that," said Eric Portenga. He and his husband, Kevin O'Neill, had traveled from their home in Ann Arbor to the state capitol in Lansing to listen to the legislative hearings.

Eric Portenga and Kevin O'Neill hold their newborn triplets (from left) Parker, Robin and Sylvie O'Neill, in Sept. 2021.
/ The Portenga-O'Neill family
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The Portenga-O'Neill family
Eric Portenga and Kevin O'Neill hold their newborn triplets (from left) Parker, Robin and Sylvie O'Neill, in Sept. 2021.

If you've been through the surrogacy process, as they have, "you know there's no commodification at all," Portenga said. "You want a family because you have love to give. And you want to build the love that you have, with your family."

When Portenga and O'Neill were trying to become dads, they reached out to surrogacy agencies in other states, but were told it would cost $200,000. "We would have had to have sold the house," O'Neill said.

Like the Myers, they turned to Facebook and social media, "just putting our story out there that we wanted to become dads." A friend of a friend, Maureen Farris, reached out: She'd been wanting to help a family through surrogacy for years, she said. And she lived just a few hours south in Ohio, where surrogacy contracts and compensation are legal.

Their contract was fairly standard for the industry: Both sides had to undergo psychological background checks, have legal representation, and it included compensation for Farris. (The contract also stipulated Farris couldn't travel into Michigan beyond a certain point in her pregnancy, because if she'd gone into labor and delivered in the state, she would be considered the legal parent of the child.)

Kevin O'Neill and Eric Portenga with their identical triplet daughters in Oct. 2022. Michigan Governor Gretchen Whitmer signed legislation Monday repealing the state's criminal ban on surrogacy.
/ The Portenga-O'Neill family
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The Portenga-O'Neill family
Kevin O'Neill and Eric Portenga with their identical triplet daughters in Oct. 2022. Michigan Governor Gretchen Whitmer signed legislation Monday repealing the state's criminal ban on surrogacy.

All of that, Portenga and O'Neill say, give surrogates more protection and agency than they've had in Michigan. "They're carrying a human life inside of them," O'Neill said. "[Sometimes] they're not able to work. Their bodies will be changed forever. They're getting compensated for the amazing gift they're giving people."

After the embryo transfer was successful, Portenga and O'Neill learned Farris was pregnant. With identical triplet girls.

"They came out and just unraveled this huge string of ultrasound photographs and, and that's when we knew our life had changed," Portenga said, sitting at home in the family's kitchen. The girls were born in Ohio, where the dads could be legally named their parents, and then the family of five returned to Michigan.

Today, Sylvie, Parker and Robin O'Neill are two-years-old, and very busy. Parker is the "leader of the pack," while Robin is the "brains of the operation," (she can count to ten, but likes to skip the number five,) while Sylvie is "the most affectionate, the most sensitive, of the three of them," O'Neill said. "But their bond is so amazing to watch. And we're so lucky to be their dads."


This story comes from NPR's health reporting partnership with Michigan Public and KFF Health News.

Copyright 2024 Michigan Public

Kate Wells
Kate Wells is a Peabody Award-winning journalist and co-host of the Michigan Radio and NPR podcast Believed. The series was widely ranked among the best of the year, drawing millions of downloads and numerous awards. She and co-host Lindsey Smith received the prestigious Livingston Award for Young Journalists. Judges described their work as "a haunting and multifaceted account of U.S.A. Gymnastics doctor Larry Nassar’s belated arrest and an intimate look at how an army of women – a detective, a prosecutor and survivors – brought down the serial sex offender."