SWEEPING CHANGES TO MICHIGAN SURROGACY LAWS IN 2024

BY KATE WEAVER (OAKLAND)

In a landmark move, Michigan has overhauled its surrogacy laws by repealing the restrictive Surrogate Parenting Act of 1988. The new Michigan Family Protection Act, signed by Governor Gretchen Whitmer on April 1, 2024, brings Michigan in line with modern surrogacy practices.  The new law provides much-needed clarity, protections, and inclusivity for families and surrogates alike.

The Surrogate Parenting Act of 1988 positioned Michigan as one of few remaining states in the nation to criminalize surrogacy contracts. The Surrogate Parenting Act of 1988 declared surrogacy agreements "void and unenforceable." Further, it made it a felony to arrange paid surrogacy contracts, with penalties including fines up to $50,000 or imprisonment for up to five years. It lacked clear provisions for parentage rights, forcing biological parents to undergo lengthy adoption processes to gain legal recognition of their child.

The law was rooted in controversies surrounding surrogacy in the 1980s, such as the infamous "Baby M" case, where a surrogate in New Jersey, who agreed to be artificially inseminated changed her mind about giving up the minor child.  This led to lengthy court matters that escalated to the Supreme Court. As assisted reproductive technologies evolved, the outdated legislation posed significant hurdles for families and surrogates navigating the surrogacy process in Michigan.

The Michigan Family Protection Act of 2024
The Michigan Family Protection Act, a package of nine bills (House Bills 5207 through 5215), marks a pivotal shift in state policy. Repealing the Surrogate Parenting Act of 1988 and creating the Assisted Reproduction and Surrogacy Parentage Act (the act does not apply to the birth of a child conceived by sexual intercourse).  Key provisions of the Act include:

• Legalization and Regulation of Surrogacy: Both compensated and uncompensated surrogacy are now legal, with safeguards in place to protect all parties involved.
• Clear Pathways to Parentage: Parents using surrogacy can establish legal rights to their children without enduring lengthy and costly adoption processes.
• Protections for Surrogates: Surrogates are ensured fair compensation, independent legal representation, and medical screening prior to entering agreements.
• Equality for LGBTQ+ Families: The Act eliminates barriers, ensuring LGBTQ+ parents can easily obtain legal documentation confirming their parental status. Protections extend across state lines, safeguarding family rights in jurisdictions with less inclusive laws.
• Modernized Guidelines: The Act aligns with contemporary best practices in assisted reproductive technology, ensuring ethical and medical standards are met.

A New Era for Michigan Families
Governor Whitmer explained the importance of these reforms, stating, “Decisions about if, when, and how to have a child should be left to a family, their doctor, and those they love and trust, not politicians.” She emphasized that these changes not only protect reproductive freedom but also make Michigan a more supportive state for growing families.
The Act is a long-overdue response to the evolving needs of Michigan residents. Approximately 2% of all assisted reproductive technology cycles in the U.S. now involve gestational carriers which highlights the growing relevance of surrogacy in family planning.
The repeal of the 1988 law and the implementation of the Michigan Family Protection Act reflects a commitment to reproductive freedom, inclusivity, and the well-being of all participants in the surrogacy process. By addressing the shortcomings of outdated legislation, Michigan has set a new standard for supporting families formed through surrogacy and IVF, ensuring that every parent and child is treated with dignity and equality.
As judicial officers, the Michigan Family Protection Act may present itself in paternity or custody issues in both juvenile and domestic matters.  A child conceived under a surrogacy agreement or through the use of assisted reproduction that does not involve surrogacy may be subject to the Assisted Reproduction and Surrogacy Parentage Act. ​