Michigan legalizes paid surrogacy in sweeping overhaul of parentage laws

• Paid surrogacy will be legalized in Michigan starting this week
• Michigan was the last state in the nation to decriminalize paid surrogacy, though the state has a prior history of the practice
• New regulations also offer clearer path to parenthood for those conceiving using assisted reproduction

Prospective parents in Michigan who are pursuing alternative means to grow their families will have stronger legal rights and more options at their disposal under new laws set to take effect Wednesday.

Chief among them: Paid surrogacy contracts, which compensate surrogates beyond basic medical expenses and had been barred in Michigan for decades, even as other states decriminalized the practice. 

Longtime advocates say the new laws signed last year by Gov. Gretchen Whitmer does much more, also affording anyone pursuing assisted reproduction — and the surrogates they’re working with — upfront protections to help them avoid protracted legal battles down the line. 

“Surrogacy is a wonderful part of this, but there are a lot of children that are born through assisted reproduction for all kinds of different reasons,” Melissa Neckers, an attorney with Miller Johnson specializing in assisted reproduction, told Bridge Michigan. “Children are going to have parentage orders that are correct and identify their actual parents.” 

Critics remain concerned that allowing paid surrogacy in Michigan could open the door for exploitation of low-income women.

But for several Michigan parents who have already navigated the surrogacy process, the laws mark a significant sign of progress that will help prevent others from facing the legal hurdles they went through to have kids.  

Related:

• Paid surrogate contracts may soon be legal in Michigan despite GOP concerns
• Michigan makes paid surrogate pregnancies a crime. That could change

Grand Rapids resident Tammy Myers went through an unpaid altruistic surrogacy process with Lauren Vermilye after breast cancer left her unable to conceive additional children. 

After their twins were born, she and her husband faced difficulties making emergency medical decisions for the children. Later, they were required to legally adopt when Kent County judges declared their initial surrogacy agreement with Vermilye invalid. 

“This package would have changed everything about my situation,” Myers told Bridge. “All of the issues that we faced and just the unknown of who had rights and who didn't…none of that would be an issue.” 

What the new laws do 

Altruistic surrogacies — where surrogates are uncompensated for their efforts beyond medical and pregnancy-related expenses — were already legal in Michigan. 

But hiring a surrogate or agreeing to carry a baby for pay was previously a crime. The act of signing a paid surrogacy contract was a misdemeanor punishable by up to one year in prison and a $10,000 fine.

Arranging such a contract was a felony punishable by up to five years in prison and a fine of up to $50,000.

Those decades-old criminal penalties will be eliminated under the new laws that also establish regulations for paid surrogacy. 

Those include adequate legal representation for all parties involved and requirements for prospective surrogates, who must have already given birth at least once, pass a series of physical and mental health tests and be at least 21 years old to carry a child for another family. 

More broadly, the legislation establishes a path for clear parent-child relationships for assisted reproduction, which advocates say will make it easier for same-sex couples to establish parentage without one or both parents having to go through the formal adoption process. 

The legislation extends to parents of children conceived through other nontraditional methods, including in vitro fertilization, and clarifies that a sperm donor — whether paid or unpaid — is "not a parent of a child conceived by assisted reproduction."

How it compares to other states

Prior to the new laws taking effect, Michigan was the only state in the country that still had criminal penalties on the books for paid surrogacy.

The 1998 law had been enacted in the wake of the “Baby M” case in New Jersey, where a paid surrogate had a change of heart and fought to keep the child, sparking a legal battle between her and the intended parents. 

Before banning the practice 27 years ago, Michigan had been at the forefront of paid surrogacy contracts, said Ginanne Brownell, a Michigan-born journalist and author who recently published a book examining assisted reproduction and surrogacy. 

“Michigan was the first place in the world, as far as we understand, where a compensated surrogacy contract was signed — in 1976 in Dearborn,” Brownell said. “It was also the first place in the world where a judge ruled that the intended parents…not the surrogate, should be on the birth certificate.”

Brownell now lives in London, but she supported changes to Michigan law after her own fertility journey led her to work with a surrogate in Illinois. 

She described the process in that state as “super simple and super easy” — a luxury she hopes will soon extend to prospective parents and surrogates in Michigan. 

“People say to me, ‘Oh my gosh, it's so science fiction that you did surrogacy,’” she said. “What’s science fiction to me is that you can have a positive pregnancy test … Everybody builds their family in different ways.” 

Why some remain concerned 

During the legislative process, many Republican lawmakers and the anti-abortion group Right to Life of Michigan criticized the proposed surrogacy changes, fearing the changes could result in the exploitation of low-income women. 

Proponents of the previous ban on paid surrogacy argued the new laws could encourage bad actors to turn surrogacy into a commercial business and exploit women who are able to become pregnant.

“There really isn’t any regulation to prevent that at this point,” said Genevieve Marnon, legislative director at Right to Life of Michigan. “I think we need to be careful. I worry that to young women who may be financially strapped, it could look very enticing for them.”  

Marnon said her group — which opposes legal abortion — is also concerned that legally-binding surrogacy contracts often contain an abortion clause should the would-be parents change their mind. 

She said she hopes the laws, once enacted, are “not as bad as we fear” and said Right to Life of Michigan encourages people to continue considering altruistic surrogacy options. 

What happens now 

Though Michigan is the last state in the nation to decriminalize paid surrogacy, lawmakers went well beyond many other states’ policies in terms of codifying regulations and parentage rights. 

Louisiana in 2016 decriminalized paid surrogacy but established tight parameters that still make the process more difficult there than other states. Nebraska won't enforce surrogacy contracts, but signing them is not a crime.

Rep. Samantha Steckloff, a Farmington Hills Democrat and a lead sponsor of the legislation, said the goal ultimately became giving Michigan the most comprehensive parentage laws available. 

“There was no stone left unturned when we were creating this legislation,” said Steckloff, a third-term lawmaker who views the new regulations as one of her biggest career accomplishments. “We're now the leaders in the country.”

Because there was plenty of lead time between the governor’s signature and the new policies taking effect — Republicans declined to support immediate effect, meaning the laws couldn’t take effect until 90 days after the Legislature adjourned — courts and attorneys have been able to work out some of the kinks in advance, Steckloff said. 

Other groups, like the Jewish Fertility Foundation and the Michigan Fertility Alliance, have been hosting informational webinars to help would-be parents understand the new options available to them. 

“Having to travel out of state is exhausting and expensive, and you want to be there for those good moments, so it definitely opens up a lot of opportunities,” said Elana Frank, the Jewish Fertility Foundation’s founder & CEO.

Frank added that everyone considering involvement in assisted reproduction needs to do their homework and build a trusted team of medical professionals, legal representation and an emotional support system to help guide them through the process.  

‘Real change has been made’

After beating cancer and navigating the fertility challenges that came with it, Myers — the Grand Rapids mom whose experience helped advance the bill through the Legislature — said the legal battle she and her husband faced was “an awful way to end such a beautiful story.” 

Now, her kids are four years old. They’re walking and talking, and the Vermilyes are still part of their lives. 

They don’t quite understand yet how they came to be, Myers said, but she’s making sure they’ll eventually know about the change they helped inspire in Michigan.

“All of this will be a part of their own legacy,” Myers said. “We used our voices for good, and real change has been made…I really can't put it into words how good of a feeling this is.”