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For the past 36 years, Michiganders have been subject to strict anti-surrogacy laws when it comes to parenthood through assisted reproduction. In fact, Michigan currently stands alone as the only jurisdiction in the country to literally have criminal consequences for those taking part in a compensated surrogacy arrangement. And, even for uncompensated surrogacy arrangements, the participants have been forced to face long and arduous legal processes before the intended parents are recognized as parents of their own children.
The result, unsurprisingly, has been extreme hardships for Michiganders needing assistance to have children. Hopeful parents are forced to travel out of state to build their families or are subject to long, expensive, and uncertain legal terrain.
But all of this is about to change. On March 19, 2024, the Michigan Senate passed the Michigan Family Protection Act. All that is left for the bill to become law is a signature from Gov. Gretchen Whitmer. As a proponent of the bill herself, Whitmer has promised that her endorsement is forthcoming. Ninety days after she signs, the new law will go into effect.
This Is A Big Deal
After enduring a near-death experience as a result of an ectopic pregnancy, Stephanie Jones was forced to reconsider how she would reach her goal of becoming a parent. She was shocked to learn just how hostile Michigan’s laws were for those suffering from infertility. Unwilling to take on the risks presented by the 1988 surrogacy ban, Jones went out-of-state for her surrogacy journey. But not willing to just accept the situation, Jones wanted to do more to right this wrong for others in the same position. Four years ago, she joined with others to form the Michigan Fertility Alliance, a grassroots advocacy organization. Once formed, they set out on an ambitious goal to change state law. Now, with victory imminent, Jones says she is still numb that after such a long fight, it is finally happening. “This will benefit hundreds of thousands of Michiganders.”
Michigan attorney Melissa Neckers said that she can’t exaggerate how monumental this law is for the people of Michigan. For decades, and across various partisan configurations of Michigan’s state government, the law has remained the same. But not anymore. “Every day I speak with clients who desperately want to have a child, but can’t. These are often people who have experienced serious life-threatening medical conditions, devastating news about their fertility, and incredible financial hardships.” When they finally think that they have found a viable path to parenthood, Neckers explains, she has had to tell them “No” because the Michigan law creates often insurmountable hurdles.
Once enacted, the Michigan Family Protection Act will remove the legal hurdles that thwart would-be parents. Indeed, the law will go from hostile to supportive with respect to surrogacy. The new law, for instance, affords protections for gestational carriers, egg, sperm, and embryo donors and recipients, intended parents, and, most importantly, children. Moreover, Neckers explains that the law provides clarity for judges, hospitals, vital records personnel, and insurance companies who have been asking for guidance related to parentage of children born in Michigan with the help of assisted reproductive technology. “The passage of this bill is going to be life changing for so many families, and I am so thankful to everyone who helped to finally make this happen.”
What Does The New Law Say?
A lot! The Michigan Family Protection Act is actually a package of nine(!) different bills supporting the ability of Michiganders to use assisted reproduction to build their families, or to help others build their families. It implements those supports and adjustments into the various necessary parts of Michigan law. The nine bills include:
- 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 to regulations for vital records processes related to assisted reproduction.
- Deletes criminal sentencing guidelines from the about-to-be-repealed anti-surrogacy Surrogacy Parenting Act.
- Amends the estate and probate provisions to include children conceived by assisted reproduction.
… Among others. Who knew that assisted reproduction was involved in so many aspects of the law!
Surrogacy Best Practices
Of these changes, the move to legally protect and regulate surrogacy arrangements is among the most anticipated. After eliminating the problematic criminal laws, the new laws codify certain surrogacy best practices. These include basic eligibility requirements for surrogates — being over 21, completing a medical evaluation and mental health consultation, and having independent legal representation.
The new law also requires that all surrogacy agreements contain prescribed protective provisions. For example, the agreement must permit the surrogate to make all health and welfare decisions regarding herself and the pregnancy, including whether to consent to a cesarean section or multiple embryo transfer. The surrogacy agreement must also permit the surrogate to use the services of a health care practitioner of the surrogate’s choosing.
Importantly, a surrogacy agreement may provide for that payment of compensation, support, and reasonable expenses of the surrogate.
Posthumous Recognition Of Parentage
Also included in the package is a recognition, in certain cases, of a legal parent-child relationship, even when the child is conceived after the death of a parent. This will apply when consent is clearly established as well as when certain timing metrics are met (i.e., for the parent-child relationship to be legally recognized, a child must be conceived within 36 months or born within 45 months of the death of a parent). This recognition can be important not only for sentimental reasons and the inclusion of both parents on a child’s birth certificate but can also have significant financial ramifications regarding survivor benefits or for 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 offer a major congratulations to those who worked so hard to make this happen, and to the future parents able to stay in Michigan and grow their families.
Ellen 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.
