Knowing Your State's Laws Regarding Surrogacy

Victoria Ferrara


Surrogacy is a very rewarding experience for everyone involved, but there is a legal side to consider when embarking on this journey towards parenthood. It cannot be stressed enough how important it is to know your state's laws when it comes to surrogacy. The surrogacy case of the Kehoes is a prime example of how crucial it is to have a clear understanding of what laws prevail where your surrogacy is taking place.       

Amy and Scott Kehoe had tried for all eight years of their marriage to have children.  Following several failed attempts, the couple turned to surrogacy. After handpicking an egg donor, a sperm donor, and a gestational carrier to deliver their baby, the couple hired a fertility clinic in Michigan to guide them through their journey to parenthood.  Less than a year later, the Kehoes were overjoyed to welcome their new twins, Ethan and Bridget, into their home. Little did they know that their joy would be short lived.

It was at a hearing to transfer guardianship on the Monday following the twins' birth that their gestational carrier, Laschell Baker, first learned of Ms. Kehoe's history of mental illness.  During the hearing, it was revealed that Ms. Kehoe had been diagnosed with "a psychotic disorder not otherwise specified."  She had also been previously arrested for cocaine use and driving under the influence. 

As Ms. Kehoe explained to the presiding judge, her arrest had occurred before her psychiatric diagnosis back in 2001, at a time when Ms. Kehoe relied on "self-medication."  However, since her diagnosis, Ms. Kehoe had been on an antipsychotic to control her symptoms and was a functional, stable adult.   

Despite ample evidence that Ms. Kehoe was mentally fit for motherhood, including a letter of support from her psychiatrist of nine years, Ms. Baker was disturbed by this revelation.  A month later, during which Ethan and Bridget had been living together as a family with the Kehoes, Ms. Baker decided that she thought it would be better to raise the babies herself, with her husband Paul, even though she had contracted to give the babies to the Kehoes.

In the many states whose laws favor surrogacy, this would have been a very difficult feat for Ms. Baker to accomplish.  However, not all states will enforce a surrogacy agreement made by the parties, even if it is in writing and executed before the pregnancy takes place.  As a result, the outcomes of disputes that arise after birth vary from state to state; sometimes the intended parents will prevail and keep the baby while in other states the baby may be taken and raised by the gestational carrier. 

In Michigan, where the twins were born, a statute makes surrogacy contracts void against public policy.  Such a statute makes it easy for surrogates to go in to court and to reclaim the child or children that they have birthed, leaving the intended parents childless and with no legal recourse. As a result, Laschell Baker was successful in taking the children back from the Kehoes. Ethan and Bridget are now Peyton and Dani, being raised by Laschell and Paul Baker. 

The Kehoes, devastated that their babies were "legally stolen" from them, blame the Michigan laws for the outcome.  According to an e-mail authored by Ms. Kehoe, "The reason is because of the slow court system, and because of the terrible Michigan laws. JUSTICE DOES NOT PREVAIL in this case due to Michigan laws."

The bottom line is this: learn from the mistakes of the Kehoes.  It is important to know and understand the surrogacy laws of the place of your future child's birth because such laws could ultimately determine the rest of your child's life should a dispute arise.  While some states will enforce surrogacy contracts, others will not or only will under certain circumstances. 

The important thing is to do your research and solicit the help of someone knowledgeable, preferably an attorney or agency, to better help you understand the legal implications of selecting your child's place of birth. 

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