Surrogate Mother Keeps Her Child

In Michigan and many other states, surrogacy contracts have become criminal if the surrogate mother is paid for carrying the child. If there is no payment made to the surrogate mother (other than for medical expenses and a few other allowable expenses), then these contracts are still legal.

There are many ways that one can become a parent these days. One is the "old-fashioned" way where a couple copulates and becomes pregnant. Where one party is infertile, donor sperm may be used or a harvested egg may be used. If neither the husband or wife can conceive naturally, in vitro fertilization can be used.

But then come the surrogates. They can be inseminated with a husband's sperm and conceive a child with their own egg...or become implanted with an embryo that has the DNA of one half of the couple and DNA from someone else...or become implanted with an embryo that is not biologically related to the surrogate or the couple. This is what happened in a recent Washtenaw County, Michigan case assigned to Judge Darlene O'Brien. A couple had retained a surrogate to carry an embryo unrelated to the surrogate or the couple. After the child was born, the couple became "guardians" of the child. The couple had had to approach the court for "legal status" since a woman who gives birth becomes a "legal mother" automatically, but fathers not on the birth certificate and third parties (like this couple) are not automatically acknowledged as parents under the law without more.

After the guardianship was granted, the mother discovered that the wife (now guardian) had some misdemeanor convictions and some mental health problems. With this, the surrogate mother sought to vacate the guardianship, and the court granted her request.

There are tons of problems when people other than a natural mother and father seek to raise another person's child(ren) as their own. There are very technical rules that apply to who may become a guardian, who may be granted custody, and who may adopt. In these cases, it is wise to retain an attorney who has special experience in this area.

Faupel, Fraser & Fessler has been involved in many cases involving third parties and has prevailed in contested appeals. When you retain an attorney, do not hesitate to ask if the attorney has handled third party custody/guardianship/adoption cases in the past. Find out when he/she handled these cases, how many of these cases were handled, and whether the attorney prevailed.