Senate panel hears testimony on bills to reshape Michigan surrogacy laws

With the backdrop of the national discussion over reproductive rights, reforming Michigan’s surrogacy laws was the focus of a Senate hearing Thursday in Lansing.

State Rep. Samantha Steckloff (D-Farmington Hills) gave testimony to the Senate Committee on Civil Rights, Judiciary and Public Safety on the Fertility Health Care Act, a nine-bill package that aims to remove barriers to surrogacy for Michigan families and implement protections for surrogates, parents and children.

“Michigan is the only state in the nation with a criminal ban on surrogacy contracts,” she said. “Driving these arrangements underground only serves to put prospective parents and children they hope to raise in legal jeopardy.”

Michigan is the only state that criminalizes surrogacy contracts, but bills aim to change that

The issue is a personal one for Steckloff, who told the committee that she is unable to conceive naturally as a breast cancer survivor and the chemotherapy treatments she underwent.

“But I was lucky I was able to put off chemo by one month in order to go through IVF [in vitro fertilization] and egg harvesting so that one day I might be able to have a family of my own,” she said.

Steckloff is the sponsor of the main bill in the package, HB 5207, which 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.

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.

“These bills not only update Michigan law but would put Michigan at the forefront of access to fertility health care,” she said. “As we see in Alabama and other states across this country, reproductive and fertility freedoms are under threat. Let’s make sure Michigan continues to be the leader on this front.” 

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.

To that point, Stephanie Jones, founder of the Michigan Fertility Alliance, shared her story of being forced to seek an out of state surrogate after a near-death pregnancy complication left her unable to carry a pregnancy safely. 

Jones said the physician who saved her life suggested she look into surrogacy while she was still recovering in the hospital, and it was then she learned about Michigan’s surrogacy ban and lack of parentage laws. 

“While this was the death of my fertility, it was also the moment the Michigan Fertility Alliance was born,” she said, adding that the volunteer-run organization represents the 300,000 Michiganders who need either assisted reproduction or surrogacy to build or grow their family. 

Jones said the Michigan Family Protection Act is a citizen led policy initiative fueled by “sheer grit” to make surrogacy accessible to those who need it while providing a best practice legal framework that has broad support across the infertility community, and other critical stakeholders, including the LGBTQ+ community, doctors, mental health professionals and family law experts.

“Michigan’s lack of protection for family building is forcing people to seek out of state where they know their children will be born and protected by law,” said Jones. “We are begging for our children to be legally recognized and protected. The Alabama ruling has produced a bipartisan outcry across the country that shows how important family rights are to the vast majority of Americans.”

Not everyone testifying Thursday was in favor of the bills. Right to Life of Michigan Legislative Director Genevieve Marnon noted that Michigan law currently allows for uncompensated, altruistic surrogacy but does require the legal adoption of a child who is born of one woman and then given to another person.

“That practice is child protective to prevent the buying and selling of children and to ensure children are going to a safe home,” she said. “Allowing paid surrogacy contracts may seem like an avenue for infertile couples to have children, but there’s a lot more to these bills than simply aiding couples and expanding their families. Our current law strikes a good balance between protecting vulnerable women and children while allowing infertile couples options to expand their families.”

Marnon also said by attempting to reform the current system, the proposed legislation would eliminate the criminal penalty for using minors or developmentally disabled women as surrogates.

“I don’t think that’s a good idea, do you?” she said. 

Committee Chair Stephanie Chang (D-Detroit) pushed back on that, saying the bills included an age requirement for surrogacy, as well as a mental health evaluation. 

“I would never want someone to be coerced in either direction regarding surrogacy or abortion or any of those options,” she said. 

Marnon agreed that the bill requires the surrogate to be at least 21, but said there were no penalties. 

“We can further look into this, but it seems very clear that there is that age requirement,” responded Chang. “And I’m not sure that this is a real issue or problem that we’re going to be facing.”

Further testimony on the bills is expected before they get a vote from the committee.