Fertility Health Care Act decriminalizing paid surrogacy passes Michigan Senate committee

A Michigan Senate committee on Thursday approved legislation that would completely reform and update Michigan’s surrogacy laws.

Called the Fertility Health Care Act, the nine-bill package was back again in front of the Civil Rights, Judiciary and Public Safety Committee, which initially heard testimony last week. Sponsors say it would remove barriers to surrogacy for Michigan families and implement protections for surrogates, parents and children. 

Among those in favor is Gov. Gretchen Whitmer, who issued a statement following the committee’s approval.

“Decisions about if, when, and how to have a child are deeply personal. Politicians should not be dictating the terms of these private decisions that should be left to a family, their doctor, and those they love and trust,” said the governor. “The Michigan Family Protection Act makes several commonsense, long overdue changes to remove criminal prohibitions on surrogacy, protect families formed by IVF, and ensure LGBTQ+ parents are treated equally. These changes will support parents in Michigan and guarantee that every child is treated equally and protected by the law, no matter how their parent chose to start a family.” 

The main bill in the package, HB 5207, was sponsored by state Rep. Samantha Steckloff (D-Farmington Hills). It establishes an Assisted Reproduction and Surrogacy Parentage Act that sets standards for creating a contract requiring consent from surrogates and parents to create a contract.

Currently, Michigan is the only state in the nation with a criminal ban on paid surrogacy contracts.

In order to have a contract under the bill, a surrogate must be 21 or older, have previously given birth to a child, completed a medical and mental health consultation and have independent legal representation of their choice, paid for by the intended parents, throughout the entire process of creating a contract and executing the terms of agreement. 

Other bills in the package aim to amend other parts of the law to reflect things like the rights of children born through surrogacy in arenas such as inheritance and access to their own birth certificates.

One of those who testified in favor of the bills was Emily Murray Joseph of Grand Rapids, who said that she had decided in 2022 to serve as a surrogate for her friend, who had been diagnosed with breast cancer several years before and was unable to carry a baby herself due to her cancer treatments. Murray Joseph said that after consulting with her therapist, as well as a social worker and the nurse at the fertility center, she underwent a mental and physical health screening and was ready to proceed.

“Once I was cleared to be a gestational carrier, I met with a lawyer to discuss the legal side,” she said. “Michigan provides no legal protections for any party in a surrogacy. This was, of course, discouraging to say the least.”

Despite that, Murray Joseph proceeded with an embryo transfer and then followed through on appropriate prenatal care throughout the pregnancy, at all times having sole control over medical decisions regarding her body. 

“I gave birth to my dear friend’s baby girl on March 13, 2023,” she said. “Delaney celebrated her first birthday just yesterday at home with her mom and dad. Sadly, her parents are still awaiting adoption proceedings so they can be legally recognized as just that as her mom and dad. Imagine overcoming cancer to then be faced with the reality that your long awaited and beloved child is in legal limbo and there’s nothing you can do about it.”

Following testimony in November, the bills passed the Michigan House along strict party lines, with every Republican voting in opposition. That partisan divide has only further opened up in the wake of the Alabama Supreme Court decision that gave personhood to embryos, temporarily halting IVF in that state, but igniting concerns of legislative fallout nationwide.

However, in her release, Whitmer noted the bills passed on Thursday run counter to that effort and sets up Michigan to be a leader.

“While other states make it harder for you to start a family, we are making it easier in Michigan by expanding options for pregnancy, improving maternal and reproductive health care, and investing in the kitchen-table issues that lower the cost of raising a child, such as free pre-K and free school breakfast and lunch,” she said. “I look forward to reviewing and then signing the Michigan Family Protection Act when it reaches my desk. I will continue working closely with my partners in the Michigan Legislature to make our state the best place to start, raise, and grow your family.”      

Among those testifying against the bills was Linda Kingston, who said she had also experienced the pain of infertility, but didn’t think that justified the exploitation she believed would occur of both surrogate mothers and babies.

“Commercial surrogacy is bribing a woman to get pregnant and it’s very important to remember,” she said. “Altruistic surrogacy is currently legal in Michigan. It’s when commercial surrogacy gets started that the worst of the problems begin. House Bill 5207 does not define the word compensation and is not transparent. The law needs to state no compensation will be given to the surrogate mother, her family and friends.”

She urged the committee not to vote on the bills and instead rework them to provide better protections. 

“From an ethical perspective, children are a gift and not an entitlement. Parenthood is a privilege and not a right,” said Kingston. “Commercial surrogacy must remain illegal.”

However, Polly Crozier, the director of family advocacy with the GLBTQ Legal Advocates & Defenders (GLAD), stated that bills were well thought through and based on best practice model legislation known as the Uniform Parentage Act, which originally dates to 1973. 

“The Uniform Parent Act was thoughtfully drafted by a non-partisan commission with observers and stakeholders including an expert on medical ethics. The UPA has guided parentage law in the United States for over 50 years,” she said. “It is child-centered and guided by two basic principles. One, to eliminate discrimination against children based on the circumstances of their birth, including through assisted reproduction and surrogacy. And two, to protect children’s relationships with the people who they know and love and have been acting as their parents.”

Senate panel hears testimony on bills to reshape Michigan surrogacy laws

Crozier said having comprehensive and clear parentage rules that apply to all children fosters their wellbeing by establishing the source of all rights and responsibilities for their life. 

“So the UPA recognizes however a family was formed, every family deserves protection and stability in the law,” she said.

Crozier also noted that the Alabama Supreme Court’s ruling that concluded a frozen embryo is a legal child in the context of a wrongful death effectively ended family building health care in that state, even if just temporarily. 

“I think this package demonstrates how much Michigan supports children and families, because building a family is a shared goal by so many, and this bill really has the ability to provide security to children and families in their most precious relationships.”

All nine bills were then voted out of committee, each on a party line 5-2 vote, with the two Republicans on the committee, Sens. Jim Runestand (R-White Lake) and Ruth Johnson (R-Holly), voting against them. Both Runestand and Johnson each proposed several amendments to limit what they saw as an overly vague law that could create unintended consequences, but each was defeated, all on 5-2 votes.