dissenting.
I agree with the majority that the participants in a surrogacy enterprise are subject to legal duties including the protection of the surrogate from medical risks. I disagree as to the source of that duty, and its application in this lawsuit, however, and believe the majority has implemented a so*274cial policy rather than a legal standard, one that imposes liability with no discernible contours or bounds and in fact borders on strict liability.
First, as to Keane, I agree with the majority that because of the attendant public policy considerations, surrogacy “facilitators” such as Keane have a “special relationship” to participants in surrogacy contracts. Under Michigan law, Keane had a common law duty to protect Mrs. Stiver from foreseeable medical risks posed by the surrogacy procedures. Like all legal duties short of strict liability, however, to say there is a duty is only to begin the legal analysis. Keane’s duty to protect against medical risks must be carried out in actual practice, and an alleged breach must be assessed against a factual backdrop. Because Keane was not a doctor, I believe his duty is fulfilled by his providing competent medical procedures and personnel to address the medical risks. Keane’s legal obligation to protect against medical risks cannot be higher than that of a treating physician. Therefore, Keane’s liability for the medical risks posed by the surrogacy stands on the adequacy of the medical assistance secured — absent a showing that Keane failed to procure adequate medical treatment {e.g., by utilizing unlicensed or incompetent doctors, or failing to secure a specialist if necessary), Keane’s duty to Mrs. Stiver was not breached.
I believe a similar analysis should apply to the lawyers. Under Michigan law, a lawyer already has a duty to protect a client against risks arising out of the performance of legal services. To the extent such protections extend to encompass accompanying medical risks (and I am not certain they do), they cannot be any greater than, or incorporate any higher standard of care than, that of the treating physicians.
Under Michigan law, doctors have a legally imposed duty to protect patients from unreasonable and foreseeable risks. This duty exists independent of the surrogacy context, and arises in all situations in which a physician is in a position to take reasonable precautions to protect a patient from medical risks. That duty, like all duties, must be given life by a standard of care. Outside the arena of ultra-hazardous activities, and I do not understand the majority to intend to impose that standard of strict liability, the imposition of a legal duty is simply a necessary condition for a cause of action. Actions of persons under a duty must then be analyzed under a “reasonable person under like circumstances” construct to determine whether, in the exercise of ordinary care, foreseeable risks should have been protected against.
The medical risks posed by surrogacy contracts are no different from those from other artificial insemination procedures, as between husband and wife, and are no greater in magnitude than those of other doctor/patient relationships implicating children, {e.g., obstetrics, neonatal neurosurgery). For all cases,1 the legal duty is the same, and although the particular standard of care under the duty may vary according to the particular circumstances {e.g., rural general practitioner vs. urban specialist), liability must still be grounded upon a breach of a particular standard of care under a duty. I see no reason why the unique circumstances under which the doctor/patient relationship arises here should alter this.
The majority has, I believe, conflated an elevated duty with a higher standard of care under a duty. Michigan law mandates that negligence actions involving doctor/patient medical risks be grounded on some evidence showing a breach of a standard of care. Discarding this rule and analysis is not supportable under Michigan law or under sound logic and policy. Plaintiffs have not argued, and the District Court did not pass upon, anything other than established Michigan law.
In effect, the majority has created a form of strict liability akin to that imposed upon ultra-hazardous activities, for if the jury is not instructed as to a required breach of a standard of care, then liability *275will be imposed in all cases in which avoidable harm occurs. Medical tests and procedures impose costs and risks of their own, however, and doctors are left to be whipsawed by open-ended liability for the materialization of harm from risks of performing procedures and failing to do so. Although the social circumstances of this doctor/patient relationship may be novel, unsettling and to many unseemly, I see no basis for abandoning settled principles of Michigan law. Absent evidence that a standard of care was breached, liability is unsupportable.
Finally, I disagree with the implication in the majority opinion that the issue of causation is necessarily one for the jury. The District Court has yet to pass on whether there is a material issue of fact regarding causation. Defendants argue that it would be pure speculation for a jury to conclude that the donor, rather than Mrs. Stiver or her husband, was the source of the CMV. The depositions in this case indicate other possible sources of Mrs. Stiver’s infection, including her other child bringing the infection home from nursery school. Failure to test the donor sperm cannot be said to have been shown to have caused the infection unless there is evidence that the sperm was the cause of Mrs. Stiver’s infection.
For the foregoing reasons, I respectfully dissent.
. The only exception is where the duty has been modified by statute, as in the case of emergency care by a good Samaritan doctor or health professional where liability is limited to cases of gross negligence or willful, wanton misconduct. Mich.Comp.Laws Ann. § 691.1501.