Family Law

Black Sheep Michigan Contemplates Reversing Its Draconian Surrogacy Stance

Several recently proposed bills would be serious game changers for surrogacy in the state.

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This is huge. Michigan has forever been that state that we warn surrogates and intended parents to stay away from. Michigan’s current harsh surrogacy law includes fines up to $50,000, as well as up to five years in jail! But now bills have been proposed — SB 1082, as well as its companion bills SB 1083 and SB 1084 — that could change all that.

Any Terrible Michigan Cases You Want To Tell Us About?

Michigan’s reputation for being anti-surrogacy stems from its laws allowing a surrogate to be recognized as the legal parent of the child she is carrying, despite having no genetic connection to the baby, and even though a surrogate signed an express agreement to the contrary. In the Baby S Case, Crystal Kelly, a Connecticut resident, agreed to be a gestational carrier for a couple. Everything was going well until an ultrasound revealed serious medical issues with the fetus, including a heart defect and brain cyst. The intended parents asked Kelly to terminate the pregnancy. After refusing, Kelly picked up her family and moved to Michigan where she knew she would be legally recognized as the child’s mother. After giving birth, she used her status as the only legal parent to place the baby up for adoption.

This is a terrifying thought for any intended parent to a gestational carrier arrangement. What if my surrogate changes her mind? Why does she want to go visit her relatives in Grand Rapids? Can she, at any time, claim legal rights to my child in Michigan?! Yes. She can.

SB 1082 Is A Really Big Deal

The recently proposed bills by Michigan Senators Rebekah Warren, Jim Ananich, Ian Conyers, and Coleman A. Young II, would be serious game changers. The proposed bills would permit gestational surrogacy agreements within Michigan. They would also end the possibility of a surrogate moving to Michigan and claiming legal rights to another couple’s child.

The proposed legislation follows the Illinois model. It puts in place safeguards for both parties with requirements for mental health screening, independent legal counsel for both sides (yay, attorneys!), as well as an independent escrow agent holding funds. For good measure, the bill keeps in place the $50,000 penalty if anyone tries to arrange a surrogacy with an intellectually or developmentally disabled person. No objection there.

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Like Illinois, but unlike a majority of U.S. surrogacy statutes, the bill does not require a judicial process to declare the intended parents, and not the surrogate, as the legal parents of the child. Instead, the attorneys for the parties submit certificates as to statutory compliance directly to vital records, and vital records then issues the birth certificate of the child with the intended parents listed as the child’s parents.

Senator Warren Totally Returned My Phone Call!

I was fortunate to get the chance to speak with Senator Warren on the bill. She explained that as a longtime advocate for women’s health and reproductive justice, as well as a strong proponent for equality, she was proud to sponsor this long-overdue modernization to Michigan’s surrogacy laws. The current three-decades-old law was based in a time lacking the current medical technology. The new law is desperately needed to protect parents and surrogates, as well as to provide sought-after family building options for both those suffering from infertility as well as those in the LGBTQ community. She explained that the proposed legislation had been over a year in the making, working with a coalition of medical professionals, mental health experts, attorneys, ethicists, and other stakeholders.

Given the timing of the introduction of the bill at the end of a lame-duck session, Warren did not expect any progress until next session. Nevertheless, she is optimistic about its chances of passing, having had healthy conversations with colleagues on both sides of the aisle. “It’s hard to find someone who, if not personally affected by infertility, doesn’t know someone who has been affected.” These changes could make a significant difference for those families.

I also spoke with Michigan family law practitioner Elizabeth Sadowsky, who originally brought the proposed law to my attention. She was excited for the prospect of Michigan joining the 21st century when it comes to family building options and legal protections. However, comparing the proposed bill to the American Bar Association’s Model Act, she thought there were a number of areas where the bill could go further to address concerns — such as dealing more specifically with genetic surrogacy (where the surrogate is essentially also the egg donor, using her own eggs) in addition to gestational surrogacy (where the surrogate is genetically unrelated to the child), and including more of a framework for dealing with the allocation of rights and disputes over pregnancy termination.

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Even though the bill is unlikely to make progress during this session, last week’s midterm election results — which will move Michigan from red to light blue — might substantially increase the likelihood of such a bill being passed. I am optimistic for residents of Michigan, as well as for nervous intended parents throughout the country.

Ellen TrachmanEllen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at [email protected].

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