Michigan on Monday became the first state to make surrogate motherhood a felony, a move that threatens the future of the world's largest surrogate clinic, a suburban Detroit agency run by the attorney who arranged for the birth of Baby M.
Michigan Gov. James J. Blanchard Monday signed a law that sets stiff fines and jail terms for anyone who enters into or assists in developing a contract for a child between a surrogate mother and an infertile couple.
Several other states, including California, are considering similar legislation. A bill that would make it a felony for a third party to assist in a surrogate contract has passed the Assembly in California and is expected to be voted on by the Senate Judiciary Committee today.
The bill's sponsor in the Michigan state Senate admitted Monday that the legislation was aimed specifically at shutting down the Dearborn, Mich., surrogate clinic run by attorney Noel Keane, who arranged the Baby M surrogate contract.
Lawyer Dominates Business
Keane has handled about a third of the 600 to 700 surrogate arrangements that so far have resulted in births in the United States, and runs, out of his Dearborn law office, what is by far the largest surrogate agency in the country. He also has a clinic in New York City.
Already, 228 children have been born as a result of his agency's contracts, and another 40 surrogate mothers are carrying babies for childless couples. An additional 190 women are in the process of trying to become pregnant through artificial insemination with sperm from the husbands of couples who have hired Keane.
"I would hope this would strongly discourage any operation he (Keane) has here. That is certainly the intent," said state Sen. Connie Binsfield. "I think it will really curtail his business in Dearborn."
Keane said in an interview, however, that he plans to continue his Michigan operations at least until the law goes into effect on Sept. 1. After that, he believes the law will still allow him to assist surrogates and childless couples from Michigan as long as he writes the contracts in other states. "We still need to get the proper reading of the law, to see exactly what it will allow," Keane said, "but I may ask for a judge's opinion before I do anything, because I don't want to go to jail."
Civil Liberties Cited
Meanwhile, the American Civil Liberties Union said it is considering filing suit to have the new Michigan law declared unconstitutional. "The government has absolutely no business intruding into the very private and sometimes heart-breaking decisions that families must make when they are afflicted with infertility," said Howard Simon, executive director of the Michigan ACLU. "The state of Michigan should be open to new advances in technology for dealing with infertility, not shut its eyes like some Luddite."
Other social activists, including many leading feminists, now strongly oppose such contracts as exploitative of women and dehumanizing for the children. The facts that most surrogate mothers are from lower-middle-class backgrounds and the adopting couples are usually affluent also has raised the criticism that surrogate child-bearing is just a way for the rich to buy babies from the poor.
"This turns children into a product and it turns women into breeders," Jeremy Rifkin, a social activist and co-chairman of the National Coalition Against Surrogacy, said.
Foes Gaining Momentum
Rifkin and other opponents have gained momentum since the controversy surrounding the Baby M case sparked a nationwide debate over the issue, and they now hope to push for similar legislation throughout the nation. In the Baby M case, a New Jersey woman went to court to avoid turning her child over to the couple who had contracted for her services through Keene.
Blanchard's "signature on the bill today marks the beginning of the end of commercial surrogacy in this country," Rifkin said. "Michigan is the biggest state in the country for surrogate brokering . . . . Now, we think that within two years, surrogacy will be ended all over this country."
Keane admitted that he lobbied hard to stop the Michigan legislation, which Binsfield said she had been pushing for five years. Keane said that he arranged for couples who had hired him, including those still in his program, to jointly pay $47,000 to hire a lobbyist to fight the ban.
He insisted, however, that he did not demand that the couples help to pay the lobbyist in return for admission to his surrogate program. Those who financed the lobbyist paid that fee in addition to the $20,000--half to Keane and half to a surrogate mother--that they must pay to arrange for a child through his program.
Keane also argued that laws such as the one passed in Michigan will not stop surrogate contracts. He said they will simply make it more expensive. "There are people who can't afford it now, and more who won't be able to afford it after this."