Few would argue that the state has a legitimate p“Good” means all things \(including specially ma***Goods must be both existing and identified beforeIn gestational surrogacy no child exists at the tGESTATIONAL SURROGACY: AN APPEAL TO REFORM MICHIGAN’S SURROGATE PARENTING ACT by Barbra E. Homier TABLE OF CONTENTS INTRODUCTION.................................................................................................................................2 I. BACKGROUND ......................................................................................................................3 A. Gestational Surrogacy and New Reproductive Technology....................................3 1. Assisted Reproduction..................................................................................3 2. Defining Surrogacy......................................................................................5 a. Traditional Surrogacy ......................................................................5 b. A Genetic Donor ..............................................................................5 c. Gestational Surrogacy......................................................................6 B. The Foundation of State Regulation of Surrogacy ..................................................7 1. In re Baby M – Traditional Surrogacy ........................................................7 2. Johnson v. Calvert – Gestational Surrogacy ...............................................9 C. A Survey of Current State Surrogacy Statutes.......................................................11 D. Surrogacy in Michigan...........................................................................................14 1. Michigan’s Surrogate Parenting Act.........................................................14 2. Doe v. Attorney General............................................................................17 II. ANALYSIS ....................................................................................................................19 A. The Doe v. Attorney General Applied to Gestational Surrogacy Contracts ................................................................................................................19 1. Children as Commodities...........................................................................20 2. Best Interests of the Child..........................................................................22 3. Exploitation of Women...............................................................................24 4. The Surrogate Parenting Act Not Narrowly Tailored to Any Compelling Interest....................................................................................28 B. An Amendment is Necessary In Light of Recent Innovations in Reproductive Technology......................................................................................28 C. Proposed Legislative Amendments to Michigan Surrogacy Parenting Act .........................................................................................................32 1. Enforcing Gestational Surrogacy Contracts .............................................32 2. Proposed Amendments to Michigan's Surrogate Parenting Act................34 V. CONCLUSION ....................................................................................................................38INTRODUCTION Sandra and Michael have been married for six years. As a result of a condition known as endometriosis, Sandra is unable to carry a child to term, and has suffered six miscarriages during their marriage. Both she and Michael wish to have a child; however, the adoption process is expensive and it often takes several years to adopt a baby. They have examined the various options available to them, and have concluded that a gestational surrogate would be the best choice for them to have a child that is genetically related to both of them. However, because they live in Michigan, where all types of surrogacy parentage contracts are unenforceable, they must either seek out a surrogacy arrangement in a state such as Nevada or Florida which allows for such contracts, attempt to wait several years to adopt a child, or resolve themselves to the fact they may never have children.1 Sandra and Michael are not alone. In a recent national survey, approximately 1.2 million, or 2% of married couples, had an infertility-related medical appointment within the prior year and another 13% had received infertility services at some time.2 In addition 7% of married couples had been unable to conceive a child for twelve months.3 In light of such statistics, medicine and science have responded with incredible advances that have created more options to address reproductive problems, and better success rates for in vitro fertilization. Moreover, if there is anything that time has revealed it is that technology and science will continue to progress, and that the legislature must either respond to these changes as they occur, or develop legislation that is written to stand the ebb and flow of such advances. 1 Sandra and Michael and the above fact pattern are fictional and are for illustrative purposes only. 2 See CENTER FOR DISEASE CONTROL AND PREVENTION, 2000 ASSISTED REPRODUCTIVE TECHNOLOGY SUCCESS RATES: NATIONAL SUMMARY AND FERTILITY REPORTS 3 (Dec. 2002) (citing 1995 National Survey of Family Growth) [hereinafter CDC 2000 ART SUCCESS RATES]. 3 See id. 2This commentary is a plea to the legislature of Michigan to amend its Surrogate Parenting Act (SPA) to allow for the enforceability of gestational surrogate parenting contracts, under certain conditions. This paper will begin with a brief recitation of the historical background of surrogacy, will identify the different types of surrogacy, will survey current state surrogacy statutes, and provide a background of both the most well known surrogacy cases in other states, and the legislative history of Michigan’s SPA and case law. It will then identify the flaws in the Michigan Supreme Court’s Doe v. Attorney General4 decision, and will analyze the need to amend the SPA in response to the changing artificial reproductive techniques which have created a growing number of infertile couples who wish to elect gestational surrogacy. The commentary will conclude with suggested legislative changes that would provide for the enforceability of