Mariana Llanos is a second-year law student at American University Washington College of Law. Mariana is in the International J.D. Program and completed two years of legal education at the University of Ottawa in Ottawa, Canada. Mariana is interested in pursuing a career in family law.

In the United States, surrogacy is regulated state by state. The legal rules surrounding surrogacy vary depending on the type of surrogacy (gestational vs. traditional), the sexual orientation of the intended parents, the marital status of the intended parents, whether compensation is permissible, and whether surrogacy contracts are legally enforceable.[1] As technology develops, surrogacy has become a viable option for many individuals, especially for those struggling with infertility, LGBTQ+ couples, and for those with medical conditions that make pregnancy unsafe; the law, however, in many states has struggled to keep up. Michigan belongs to a minority of states that do not recognize surrogacy contracts as valid and enforceable, joined by Nebraska and Louisiana.[2]

On September 21, 2022, Senate Bills 1177-1180 and House Bills 6389-6392 were introduced into the Michigan Legislature.[3] The Gestational Surrogacy Parentage Act was introduced by Michigan Senators Winnie Brinks (D) and Curtis Hertel, Jr. (D), and Representatives Samantha Steckloff (D) and Christine Morse (D).[4] The bills were also supported and developed by the Family Law Section Council of the Michigan Bar Association, RESOLVE: The National Infertility Association, and California-based national surrogacy expert Richard Vaughn.[5] These bills, collectively referred to as the Gestational Surrogacy Parenting Act, aim to repeal and replace Michigan’s Surrogate Parenting Act, which makes all surrogacy contracts, agreements, or arrangements “void and unenforceable as contrary to public policy.”[6] Under the Surrogate Parenting Act regime, the only way an intended parent may gain parental rights are through a pre-birth order or through post-birth adoption.[7] Under Michigan’s current legal framework, it took Michigan couple Tammy and Jordan Myers two years to formally adopt their biological twins born via surrogate.[8] Many families will undergo the same struggles if Michigan’s statutory framework does not change.

The Gestational Surrogacy Parentage Act will make gestational surrogacy agreements valid and enforceable, meaning intended parents will be recognized as the parents of the child born via surrogate through an administrative, rather than judicial, process.[9] This will eliminate the need for a pre-birth court order or formal adoption, reducing uncertainty and costs for intended parents. The Gestational Surrogacy Parentage Act also aims to create a process so the intended parents can have their names listed on the birth certificate at birth as well as update the Michigan criminal code to remove the prohibition on surrogacy contracts for compensation.[10] While there is no longer a criminal penalty, the Gestational Surrogacy Parentage Act still bans gestational surrogacy agreements that provide for compensation, which leaves “altruistic” surrogacy as the only option.[11] Compensation does not include: expenses incurred as a result of the pregnancy; medical, legal, and other professional expenses; time lost from work; and reasonable and actual living expenses consistent with payments under Michigan adoption law.[12]

In the House, the bill was read once by its title and referred to the Committee on Health Policy on September 22, 2022.[13] In the Senate, the bill was read twice by title and referred to the Senate Committee on Judiciary and Public Safety on September 29, 2022.[14] Michigan’s legislative session came to a close on December 31, 2022, leaving the future of the Gestational Surrogacy Parentage Act up in the air. The 2022 year ended with numerous legislative races in Michigan, however the main proponents of the bill remain in office.

 

[1] The United States Surrogacy Law Map, creativefamilyconnections.com,  https://www.creativefamilyconnections.com/us-surrogacy-law-map/ (last visited month day, 2023).

[2] Id.

[3] S. 1177-1180, 101st Leg., Reg. Sess. (Mich. 2022); H.R. 6389-6392, 101st Leg., Reg. Sess. (Mich. 2022).

[4] S. 101-70, Reg. Sess., at 1679-1680 (Mich. 2022); H.R. 101-74, Reg. Sess., at 1738 (Mich. 2022).

[5] Ellen Trachman, Will Proposed Bills Reverse Michigan’s Hostile Surrogacy Laws?, Above the Law (Oct. 5, 2022, 12:26 PM), https://abovethelaw.com/2022/10/will-proposed-bills-reverse-michigans-hostile-surrogacy-laws/.

[6] Mich. Comp. Laws § 722.855 (1988).

[7] Dion E. Roddy, What You Need to Know About Surrogacy in Michigan, American Surrogacy (last visited month day, 2023), https://www.americansurrogacy.com/surrogacy/michigan-surrogacy-laws.

[8] Yi-Jin Yu, Couple Legally Adopts Biological Twins Nearly 2 Years After Their Birth, Good Morning America (Dec. 16, 2022), https://www.goodmorningamerica.com/family/story/couple-legally-adopts-biological-twins-2-years-after-95304802.

[9] S. 1177-1180, 101st Leg., Reg. Sess. (Mich. 2022); H.R. 6389-6392, 101st Leg., Reg. Sess. (Mich. 2022).

[10] S. 1178-1179, 101st Leg., Reg. Sess. (Mich. 2022); H.R. 6389-6390, 101st Leg., Reg. Sess. (Mich. 2022).

[11] S. 1177, 101st Leg., Reg. Sess. (Mich. 2022); H.R. 6392, 101st Leg., Reg. Sess. (Mich. 2022).

[12] Id.

[13] H.R. 101-74, Reg. Sess., at 1738 (Mich. 2022).

[14] S. 101-70, Reg. Sess., at 1679-1680 (Mich. 2022).