Family Law

Will Proposed Bills Reverse Michigan’s Hostile Surrogacy Laws?

On September 21, 2022, Michigan legislators introduced a series of bills intent on bringing Michigan family-building in line with modern Michigander family-protection expectations.

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Family court (by David Lat).

In the world of surrogacy and modern family-building options, Michigan has been notorious for having the worst laws in the country. In 1988, the Great Lakes State passed a law prohibiting and criminalizing(!) compensated surrogacy arrangements. That law remains in place today, and has led most Michigan residents who need surrogate-related family-building assistance to look for help outside of the state. For those — like Jordan and Tammy Myers — who have braved the altruistic (noncompensated) process of surrogacy within the state, they have faced lengthy legal headaches that force them to adopt their own children.

Course Correction

On September 21, 2022, Michigan legislators introduced a series of bills intent on bringing Michigan family-building in line with modern Michigander family-protection expectations. The bills, collectively, would remove criminal sanctions (with exceptions) and lay out a regulated and protected path to parenthood by noncompensated surrogacy. The changes are laid out over four bills:

The Main Bill — New Surrogacy Requirements. SB1177/HB 6392 repeals the 1988 law, and creates the new “Gestational Surrogacy Parentage Act” providing for specific requirements and protections for gestational surrogacy arrangements and clear paths to parental recognition.

Correct Birth Certificates. SB1178/HB6390 updates the public health codes, supporting the simplified process for intended parents to be listed as the parents on their surrogate-born child’s birth certificate.

Decriminalization. SB1179/HB6389 updates the criminal codes to remove the felony penalties for compensated surrogacy arrangements, but adds those penalties — including up to five years in prison — for any surrogacy arrangement involving a minor, an intellectually disabled individual, or an individual with mental illness or developmental disability.

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Updated Paternity Code. SB1180/HB6391 updates references from the old surrogacy law to the new Gestational Surrogacy Parentage Act within the “revocation of paternity act.”

Still No Compensation For Michigan Surrogates

While most states in the United States have either explicitly (with statutory support) or implicitly (with no law prohibiting it) embraced compensated surrogacy, the proposed Michigan laws are still not willing to go that far. However, the definition of “compensation” under the proposed law would specifically exclude:

  • expenses incurred as a result of the pregnancy by a gestational surrogate
  • the gestational surrogate’s actual medical, legal, and other professional expenses
  • time lost from work by the gestational surrogate because of the surrogate gestation or the gestational surrogacy agreement
  • reasonable and actual living expenses for the gestational surrogate consistent with payments under Michigan adoption law — which include payment of rent/mortgage during the pregnancy and up to six weeks after delivery

The carve-outs could significantly lift the financial burden on potential surrogates. That’s a good thing. Also, the decriminalization bill removes the onerous penalties for compensated surrogacy. So, compensated surrogacy arrangements would be possible without the risk of committing a crime, but the parties would have to figure out how to receive a determination of legal parentage other than through the simplified process created for noncompensated surrogacy arrangements.

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Streamlined Recognition Of Parentage

Most states with surrogacy-supportive laws require that the parties go through a court process to have the intended parents recognized as legal parents of their surrogate-carried child. The Michigan proposed law would provide for an administrative process, permitting a birth certificate to be issued by vital records, naming the intended parents as parents, without a court petition, so long as the attorneys from each side file certain certifications that the gestational surrogacy agreement met the statutory requirements.

The proposed law also permits the parties to request a court order, either in addition to or instead of the administrative process. That court process is also streamlined and flexible, permitting the court order to be granted either before or after the birth of the child, and prescribing that the court shall not require a hearing unless the gestational surrogate challenges the accuracy or authenticity of the attorney certificates.

Those are good options to have.

A Long Time Coming

I spoke with Michigan attorney Melissa Neckers about the new bills. She explained that it has been a long road to get to this point, with serious efforts starting back in 2016. Fellow Michigan attorney Elizabeth Sadowski has been leading a task force with the Family Law Section Council of the Michigan Bar Association, contributing considerable effort to develop the proposed law. In addition to the leadership of prime sponsor Grand Rapids Sen. Winnie Brinks, Neckers credited the efforts of RESOLVE: The National Infertility Association as well as support from California-based national surrogacy expert Richard Vaughn. (Vaughn is also the co-author of this book on how to start a successful assisted reproductive technology legal practice. Michigan attorneys may want to check it out if these bills pass!)

Neckers noted that time was running short on Michigan’s current legislative session, which will come to a close on December 31. There is also a competitive governor’s race in the state, as well as numerous legislative races. So it’s hard to know what might change when the December 31 deadline passes. However, Neckers was not without hope that the Michigan legislation would welcome the new proposed laws, and pass them quickly.

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 babies@abovethelaw.com.

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