The Battle to Keep Commercial Surrogacy Out of Michigan

It seems we have lost the fight to keep commercial surrogacy out of Michigan. In November, 2023 we provided expert testimony to the House Judiciary Committee in Michigan. Then, in March, 2024 we submitted written testimony to the Michigan Senate opposing bills that would legalize commercial surrogacy contracts. In between, we provided essential education on the topic of surrogacy to lawmakers in the state. The following testimony is the written testimony we submitted to the Senate Committee in early March. Unfortunately, the surrogacy package in Michigan was passed by the Senate on March 19th. No amendments were made and the bills are now headed to the governor. We are committed to protecting women and children at home and abroad.

March 5, 2024

To: Senator Stephanie Chang and Members of the Senate Civil Rights, Judiciary, and Public Safety Committee

We write with concern regarding House Bills 5207-5215 which, as a package, would repeal Michigan’s current ban on surrogacy and legalize surrogacy contracts. Infertility is a heartbreaking condition affecting those who desire to have children. However, the pain and grief that infertility causes do not justify the harmful, exploitive nature of the surrogacy industry. We in no way minimize the heartache that comes from infertility, but we must not harm women and children in our quest to help some!

Many people think “surrogacy builds families, how can that be bad?” Allow us to explain. First, the practice of surrogacy is deeply regressive, exploiting women. The surrogate mother is used for her womb and is then set aside. Just this week I spoke with a surrogate mother in California that felt as if she was trafficked after completing her commercial surrogacy arrangement. She stated in an interview with me, “It actually destroyed me. It’s almost like the world caved in on me. I had this moment of realization of, ‘oh my God, what the hell just happened to me?’ I was dismissed. I was treated like garbage.” She continued, “You have to be ready to be nothing but a womb, and I don’t think women are told the reality of that. You do not exist.”

Not only is the surrogate discarded after delivery, but the important bond between the infant and birth mother (surrogate mother) is treated as if it were important during the pregnancy, and completely irrelevant afterwards. Even though we know that the maternal-fetal bond is incredibly important in the fourth trimester — especially as the baby adjusts to time outside the womb. In 1991, WHO and UNICEF launched a global effort to implement practices to protect, promote, and support breast-feeding called the Baby-friendly Hospital Initiative (BFHI).[1] It is well understood that skin to skin with the birth mother in the golden hour after delivery promotes this initiative, surrogacy does not. This is only one area where deleterious effects of separating an infant from a birth mother are directly observed in surrogacy.

Recent research has also shown that there are serious medical and psychosocial risks that gestational surrogacy confers onto women who serve as surrogates and to the babies they carry for another person or couple. Many developed countries have prohibited commercial surrogacy on human rights and women’s health grounds because surrogacy often depends on the exploitation of low income and poor women by those with means to pay for surrogacy. The European parliament stated in 2011 that surrogacy is “an exploitation of the female body and her reproductive organs.” They have also stated very simply that surrogacy is, “violence against women.” More recently, in January 2024, Belgian presidency of the Council and representatives of the European Parliament reached a provisional agreement to add surrogacy as a type of exploitation covered by the EU’s anti-trafficking law.

By itself, in vitro fertilization (IVF) is not without its share of risks and complications, coupled with a very high failure rate of a very costly procedure. From the CDC’s most recent data of 2020 we see that 326,468 IVF cycles were done which resulted in 75,023 live born infants. That isn’t a high success rate. IVF can be deleterious on a woman’s health and new studies are exploring the dangerous effects on the children born through this technology as well. A 2021 study found that “children conceived by assisted reproductive technology (ART) had statistically significantly worse outcomes in left ventricular function and structure.” The article further stated that “children conceived by ART had increased blood pressure and unfavorable changes in left ventricular structure and function compared with children who were naturally conceived.”[2]

Not only does surrogacy have risks associated with the IVF procedure, research has shown that surrogate pregnancies are high-risk pregnancies and are more likely to result in cesarean section, maternal gestational diabetes, hypertension or preeclampsia, placenta previa, and other life-threatening complications like postpartum depression.[3,4] Children born from IVF have increased incidences of pre-term birth, low birth weight, cerebral palsy, and other conditions that result in NICU admissions and longer hospital stays.[4] There have even been confirmed deaths of surrogate mothers in both the United States and abroad. Most people are unaware that a surrogate pregnancy, even if the surrogate is only carrying one baby, is a higher-risk pregnancy. Of course, high-risk pregnancies put mother and baby(ies) at risk. Dr. Anthony Diehl, an Ob/Gyn doctor in Rapid City talks about the conflicts of interest when a physician is taking care of a surrogate mother but is being paid by the people who intend the raise the child. Let us remind you that the U.S. has one of the highest maternal mortality rates in the developed world, having doubled from 1991 to 2014, and is the only developed country whose maternal mortality rate is rising. With already high maternal mortality rates, why would Michigan further encourage or allow for the legalization of commercial surrogacy when surrogate pregnancies result in even higher risks still?

Finally, we should all pause and consider if we want to create a world where we market human beings. Jessica Kern, a woman who found out at 16 that she was a product of gestational surrogacy, writes “I think commercial surrogacy is wrong. It really is the buying and selling of babies, and the commodification of women’s bodies.”[5] Do children conceived from surrogacy contracts feel like Jessica Kern? We don’t know because, to date, there is no research on how offspring of surrogacy feel about their origins. Jessica continues in her story, “I think that there is a very important voice missing from the ongoing cultural debate over surrogacy: the voices of the children themselves.”4 Until we hear from the children, surrogacy will continue to be “unashamedly, an adult or parent-centered view, with the basic human rights of newborn babies ignored.”[6]

Allowing some people to buy other people, even if they are young and small, is not a pro-liberty policy. Legislation, as a matter of good public policy, should help and protect citizens. As we seek to assist those who long for a family, we must realize that some of these very costly solutions offered carry real risks to women and children. Michigan has done well to ban surrogacy and we hope you continue to protect the lives of women and children, valuing each as a human life, not a product for sale.

Jennifer Lahl, R.N., B.S.N, M.A.

Founder, The Center for Bioethics and Culture

Kallie Fell, R.N., B.S.N., M.S.

Executive Director, The Center for Bioethics and Culture

Geneva: World Health Organization; 2009.
Cui L, Zhao M, Zhang Z, Zhou W, Lv J, Hu J, Ma J, Fang M, Yang L, Magnussen CG, Xi B, Chen ZJ. Assessment of Cardiovascular Health of Children Ages 6 to 10 Years Conceived by Assisted Reproductive Technology. JAMA Netw Open. 2021 Nov 1;4(11):e2132602. doi: 10.1001/jamanetworkopen.2021.32602. PMID: 34735014; PMCID: PMC8569486.