Michigan’s New Surrogacy Law is Here! What does it do?

Silhouette of a refugees family with children

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Since the mid-1980s, Michiganders are subject to strict antisurrogacy laws in regards to parenthood via assisted reproduction. Michigan is currently the only jurisdiction that criminalizes those who take part in a surrogacy arrangement for compensation. Even for uncompensated agreements, the participants were forced to go through long and arduous legal procedures before the intended parents were recognized as the parents.

Michiganders who need assistance to have children are facing extreme hardships. Many parents who wish to have children are forced to travel outside of Michigan or are faced with a lengthy, expensive and uncertain legal procedure.

This is about to change. On March 19, 2020, the Michigan Senate passed a new law. Michigan Family Protection Act. The only thing left is for Gov. Whitmer to sign the bill into law. Gretchen Whitmer. Whitmer, who was a proponent of this bill, has promised to endorse it. The new law is set to take effect 90-days after Whitmer signs.

This is a Big Deal

After experiencing a near-death event as a result an ectopic pregnancies, Stephanie Jones She was forced to rethink how she would achieve her goal of becoming parents. She was shocked at how hostile Michigan laws were to those with infertility. Jones, unwilling to take the risks posed by the 1988 ban on surrogacy, went out of state for her surrogacy experience. Jones, not willing to accept this situation, wanted to do more for others in a similar position. She formed the Michigan Fertility Alliance, a grassroots organization. Once they were formed, their goal was to change state laws. Jones, despite the imminent victory, says she’s still numb at the thought that it has finally happened after such a long battle. “This will be beneficial to hundreds of thousands Michiganders.”

Michigan Attorney Melissa Neckers She said she could not exaggerate the importance of this law for the people in Michigan. The law has remained unchanged for decades, despite the fact that Michigan’s state governments have been governed by different partisan groups. But not anymore. “Everyday I speak to clients who desperately want a child but can’t. Many of these people have suffered from serious medical conditions that could be life-threatening, bad news about their fertility and financial hardships. Neckers says that she has often had to say “No” to people who have finally thought they’ve found a viable route to parenthood. Michigan law can create insurmountable barriers.

Once the Michigan Family Protection Act becomes law, it will remove all legal obstacles that prevent would-be fathers from becoming parents. Surrogacy will be a more positive experience under the new law. The new law provides protections to gestational carrier, egg, embryo, sperm donors and recipients, intended parent, and most importantly children. Neckers says that the law clarifies the parentage of children who were born in Michigan using assisted reproductive technology. Judges, hospitals, vital record personnel, and insurance firms have asked for guidance on this issue. “The passage is this bill will change the lives of so many families. And I am so grateful for everyone who helped make this happen.”

What Does the New Law Say about?

Many! The Michigan Family Protection Act consists of nine(!) The Michigan Family Protect Act is a collection of nine(!) bills that support Michiganders’ ability to use assisted reproductive technology to build their own families or help others build theirs. It incorporates these adjustments and supports into the various parts of Michigan law. The nine bills include the following:

  • Enactment of the Assisted Reproduction and Surrogacy Parentage Act, which prescribes a process for the parties to an assisted reproduction agreement — including donors and intended parents — to be protected and recognized, as well as creating a structure of regulations to safeguard the participants in a surrogacy arrangement. (Including the child!)
  • Updates on regulations for vital record processes related to assisted reproductive technology.
  • The Surrogacy Parenting Act, which is about to be repealed and has been deemed anti-surrogacy, will no longer include criminal sentencing guidelines.
  • Modifies the estate and probate provisions so that they include children conceived through assisted reproduction.

… Among others. Who knew that assisted reproductive technology was so important to the law?

Surrogacy Best Practices

Among these changes, the move towards protecting and regulating surrogacy arrangements is the most anticipated. After eliminating the problematic laws, the new laws codify some surrogacy best practice. These include basic eligibility requirements for surrogates — being over 21, completing a medical evaluation and mental health consultation, and having independent legal representation.

All surrogacy contracts must also include certain protective provisions. The agreement, for example, must allow the surrogate to make any health and welfare decision regarding herself and her pregnancy, such as whether to consent to multiple embryo transfers or a c-section. The surrogacy contract must also allow the surrogate the right to choose the health care provider of her choice.

A surrogacy contract is important. You can learn more about it here Surrogates may be entitled to compensation, support and reimbursement of reasonable expenses.

Posthumous Recognition of Parentage

In certain cases, the package also includes a recognition of a legal relationship between parent and child, even if the child is born after the death a parent. This will apply if consent is clearly established, as well as if certain timing metrics are met. (For example, for a parent-child relationship be legally recognized, the child must be born or conceived within 45 months after the death of a father). This recognition is important for sentimental reasons, and to include both parents on the child’s birth certificates. It can also have financial implications for survivor benefits and estate purposes.

In short — or not so short if you made it this far — the Michigan Family Protection Act is a giant leap forward for Michigan. I would like to congratulate all those who worked hard to make it happen and the future parents that will be able stay in Michigan to raise their families.

Ellen TrachmanEllen Trachman is a managing attorney of Trachman Law Centre, LLC, a Denver based law firm that specializes on assisted reproductive technology law and co-hosts of the podcast I Want To Put A Child In You. You can reach her by calling babies@abovethelaw.com.

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