Tammy and Jordan Myers will have to adopt their twins after two Michigan judges denied them parental rights because the children had been carried by a surrogate.
By Maria Cramer
The nursery in the home of Jordan and Tammy Myers in Grand Rapids, Mich., is painted in shades of gray, white and midnight blue for the couple’s newborn twins. Their 8-year-old daughter, Corryn, can’t stop talking about how excited she is to finally be a big sister.
But before the state of Michigan will recognize the couple as the babies’ legal parents, the Myerses will have to adopt them.
That’s because the babies were not carried by Ms. Myers, and Michigan law does not automatically recognize babies born to surrogates as the legal children of their biological parents. As a result, the birth certificates for the twins, a boy named Eames and a girl named Ellison, list the surrogate and her husband as the parents, not Jordan and Tammy Myers.
Twice, judges have denied their requests to be declared the legal parents of the twins, even though a fertility doctor said in an affidavit that the babies are the couple’s biological children. In separate affidavits, the surrogate and her husband have agreed that the Myerses are the parents of the twins.
The Myerses have started the adoption process, which will entail home visits from a social worker, personal questions about their upbringing and their approach to parenting, and criminal background checks. They said they have already submitted their fingerprints.
Being forced to prove they are fit to adopt their own children is “offensive,” said Mr. Myers, 38.
“We have successfully raised a loving and caring 8-year-old child and that’s not taken into account when you’re going through this process,” he said.
Instead of looking forward to leaving the hospital with the twins, who were born eight weeks premature on Jan. 11, the couple must get reference letters to send to the state. Ms. Myers said they needed “temporary permission” from the surrogate, Lauren Vermilye, to bring the babies home.
Surrogacy laws are a state-by-state patchwork, said Richard Vaughn, a founding partner of the International Fertility Law Group in Los Angeles.
Some states have comprehensive laws that explain the rights of a surrogate and the people who intend to be the parents, while other states have no laws about surrogacy, he said.
In 2020, New York passed a law that lifted its ban against compensating women who act as surrogates. Louisiana prohibits compensating surrogates but recognizes agreements or contracts in which a woman has volunteered to be a surrogate, Mr. Vaughn said. The state allows such agreements only for married heterosexual couples.
But Michigan has a far-reaching law that does not recognize any agreement with a woman who agrees to be inseminated or implanted with an embryo, he said. The law also does not recognize the parental rights of the intended parents.
“There is really no other state quite like Michigan,” Mr. Vaughn said.
The story of the Myerses, which was reported by television station Fox17 and other news outlets, highlights Michigan’s unique status among states.
Its particular position is the result of a 1988 law known as the Surrogate Parenting Act, which was passed after the “Baby M” case in 1985 in which a New Jersey woman, in exchange for $10,000, agreed to a traditional surrogacy, where the surrogate used her own egg to conceive a child for a couple.
After the baby was born, the surrogate decided to keep the baby, resulting in a series of painful court battles that reached the New Jersey Supreme Court, which granted custody to the biological father.
“Michigan essentially decided they didn’t want this tragic situation to happen in their state so they just decided to prohibit it entirely,” Mr. Vaughn said.
Under Michigan’s law, paying a woman to act as a surrogate is a felony punishable by up to five years in prison and a $50,000 fine, said Melissa Neckers, the lawyer for the couple.
Any agreement a woman makes to act as a surrogate and then relinquish parental or custodial rights to the child are “void and unenforceable,” according to the law. This means that anyone in Michigan who has a child through surrogacy must go to a judge to be recognized as the legal parent or go through the adoption process.
Ms. Neckers said that by her count, judges in Michigan have granted parental rights to the people who intend to be parents in at least 72 cases since 2005.
Victoria Ferrara, a lawyer who specializes in assisted reproductive technology law and the founder of Worldwide Surrogacy Specialists, said a stigma remained around surrogacy.
“There are still people who believe that it’s exploitation of women, that it’s only for affluent people, that people who want to have children and can’t should just adopt,” she said.
In 2015, the Myerses were trying to have a second child when Ms. Myers, 39, learned she had breast cancer. She immediately had her eggs harvested before undergoing multiple surgeries, including a partial hysterectomy and a bilateral mastectomy.
The couple said they knew Michigan law would make surrogacy complicated. They could have gone outside the state to find a surrogate but distance would have interfered with their being part of the pregnancy. Also, Ms. Myers said the cancer treatments left the couple in debt and unable to pay for surrogacy, which can cost tens of thousands of dollars.
In a post on Facebook, the couple described their story and need to find an unpaid volunteer who would be willing to help them have a baby. Ms. Vermilye, 35, who also lives in Grand Rapids, read the post and sent them a note saying she was interested.
“My husband and I had talked about how I had a gift of carrying and delivering very easily,” said Ms. Vermilye, who has a girl and a boy who are 6 and 9. “We felt like it was kind of unfair that we had it so easy and have friends and family that don’t.”
In June 2020, embryos created through in vitro fertilization with Ms. Myers’s eggs and Mr. Myers’s sperm were transferred into Ms. Vermilye’s uterus, a process known as gestational surrogacy.
Ms. Vermilye and her husband, Jonathan, became close friends with the Myerses. The Vermilyes, through their lawyer, Dion Roddy, have filed affidavits making it clear that they are not the twins’ biological parents.
But judges in Kent County, Mich., have refused to grant the Myerses a hearing.
“While this Court has genuine concerns about the present-day wisdom of the 1988 Surrogate Parenting Act, such concerns are better left to the legislative/political arena,” Judge Daniel V. Zemaitis wrote in a Dec. 3 decision that denied the couple parental rights.
Mr. Roddy said other judges in the state had granted parental rights when the biological father sought them. In January, just before the twins were born, Mr. Myers, along with Ms. Vermilye, filed another motion, asking the court to grant Mr. Myers parental rights.
But four days after the twins were born, a different judge, Scott Noto, denied the request, saying he was being asked to validate a contract the state had deemed void. “The Court has no authority to enforce such a contract,” he wrote.
Ms. Vermilye said the court decisions were neither “just” nor “kind.”
Ms. Neckers said the couple could appeal the decisions but that the process could take as long as the adoption.
The couple said they now want the State Legislature to pass a law that would help future families avoid a similar ordeal.
“We are literally around-the-clock stressed and panicked,” said Ms. Myers. “Jordan, especially. I’ve never seen him this broken and upset.”