Recent Surrogate Controversies Highlight Contractual Issues I KingSpry

Recent Surrogate Controversies Highlight Potential Contractual Issues to Keep in Mind

Posted on February 3rd, 2021
by Dorota Gasienica-Kozak

Two recent surrogacy controversies have emerged over the last couple weeks that highlight potential issues for couples looking to start a family through assisted reproductive technology (ART).

New parents, Tammy and Jordan Myers, wish to adopt their twin babies after failed attempts to convince judges to name them the parents of their own biological children.

While they are the biological parents of these twin babies, under Michigan state law where they reside, the birth certificate lists the surrogate mother and her husband as the parents. Consequently, Tammy and Jordan Myers will have to legally adopt their own babies to be named the parents on their birth certificates and to obtain legal recognition as parents of the twins.

After failing to get a pre-birth order declaring the biological parents as the parents on the birth certificate, the couple was unsuccessful twice when trying to declare Jordan Myers as the biological father before the court. Tammy and Jordan are forced to adopt their own children, which includes background checks, home studies, interviews about parental capabilities, etc. Additionally, they are still unable to add their twins to their health-insurance policy.

The court’s hesitations about declaring Jordan Myers as the father relate back to the 1988 Surrogate Parenting Act, in which a surrogate contract is void and unenforceable, but the court noted that such concerns should be addressed within the legislative branch and not within the judicial system. Ultimately, under the law, their surrogacy was not recognized. Consequently, parents have an impossible journey if they are unable to have children without assisted reproduction in this state. Recently, states are starting to change their respective laws regarding assisted reproductive procedures. For example, New York just changed their laws to allow and honor surrogacy contracts. It is important for all parties to know and understand the laws of the states involved in the surrogacy process and how it will affect their abilities to start their own family and have it recognized as such under the law.

Additionally, Chinese celebrity, Zheng Shuang, recently sparked a national debate about surrogacy after Zheng’s partner reached out on social media to claim that Zheng had abandoned him and their two babies in the United States for more than a year.

The couple hired two surrogate mothers, but reports say that during the pregnancies, the couple split, and Zheng has been accused of abandoning the babies in the United States. Media outlets have provided the public with alleged photos of the birth certificates naming both Zheng and her partners as their parents, and there is an alleged phone call in which Zheng’s parents proposed abandoning the babies or to give them up for adoption. This situation is especially unique given China’s ban on surrogacy, and Zheng has been accused of benefiting from legal loopholes by seeking surrogacies in the United States.

These two controversies highlight potential issues parties may face during the surrogacy process. All parties and legal counsel need to take into account foreseeable contingencies and consequences and address them within their contract(s).

From changing minds or circumstances to issues surrounding biological parents and birth certificates, artificial reproduction, including surrogacies, are relatively new industries. Fostering open communication amongst all parties is key in order to make sure all potential questions or issues can be addressed within the contract. And the real point is that all parties should learn the law of their state – or country – invoked in the process and how those laws will affect your individual circumstance. This is why it is important to have a knowledgable ART attorney on your side to help guide you through the process.

heARTbeat is a publication of KingSpry’s Adoption Law and Assisted Reproductive Technology Law Practice Group. It is meant to be informational and does not constitute legal advice.