Parents denied legal rights to biological children after using a gestational surrogate

State of Michigan has not updated its surrogacy act since 1988

Parents must adopt biological children after using a surrogate (Getty Images/iStockphoto)

A couple has to adopt their biological twins after they relied on a surrogate to give birth to their children but were then denied legal rights.

Tammy and Jordan Myers, from Michigan, initially decided they wanted another child in addition to their daughter when Tammy was diagnosed with breast cancer six years ago.

According to Tammy, who was 33 at the time of her diagnosis, she asked the doctor how long she would have and whether she would be able to have more children.

However, after the treatment left Tammy unable to get pregnant, she and her husband turned to surrogacy, she told CBS News, eventually finding their gestational carrier Lauren Vermilye, a mother of two who offered to carry the couple’s children for free, through Facebook.

The couple learned they were having twins shortly after the embryos were transferred to Vermilye, who gave birth to newborns Eames Alexander and Ellison Erin Jewel on 11 January.

But, because of a decades-old surrogacy law in Michigan which “makes compensated surrogacy illegal for carriers and intended parents,” Vermilye was named on the children’s birth certificates, with the Myers now finding themselves fighting for parental rights to their children.

The couple were denied pre-birth rights and have since had two Kent County judges dismiss their attempts at being named the legal parents, according to CBS News, with the judges citing Michigan's Surrogate Parenting Act of 1988, under which surrogacy contracts are "void and unenforceable”.

According to the couple’s lawyer, Melissa Neckers, the Myers knew the risks associated with using a surrogate in Michigan, but believed that judges would side in their favour when they heard their story.

“They knew that there was risk," Neckers told CBS News. "But they really believed that no judge would actually hear their story, which had so many additional layers of heartache and trauma, that a judge wouldn't just want to do the right thing."

The attorney also noted that since 2005, there have been 72 cases in which judges have granted parents in similar instances pre-birth legal rights to their children.

However, Kent County Circuit Judge Daniel Zemaitis ruled that the Myers could not have parental rights because the contract between the couple and their surrogate was “unenforceable”.

He did, however, acknowledge that there were “genuine concerns” about the law, but that the matter was “better left to the legislative/political arena”.

“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. This Court will not ignore by judicial action the clear language of (the law),” the judge said, according to MLive.

“We were floored,” Tammy told MLive of the judges’ decision, which means the couple has also been unable to add their newborns to their insurance.

As for their next step, the couple will now have to undergo the lengthy process of adopting their children, which includes background checks and home inspections.

In addition to becoming the legal parents to their twins, the couple also hopes that their efforts show why the law needs to be amended.

"We just want the law to be updated," Jordan told CBS News.

The Independent has contacted Judge Daniel Zemaitis and the Myers for comment.