No Longer a Felony: Michigan Finally Joins All Other States in Protecting Surrogacy and IVF

For many couples, the journey to parenthood is not an easy one. Infertility, illness, or other problems can stand in the way of a typical pregnancy. That is why tens of thousands of Americans each year use surrogacy — where a woman agrees to and is paid to carry a child for an intended parent or parents – to bring new life into the world. But until recently, this common arrangement, allowed in 49 states, was a felony in Michigan punishable by up to five years behind bars and a $50,000 fine.

Fortunately, this non-sensical and outlying legal barrier has finally and belatedly been removed. With Gov. Gretchen Whitmer’s April 1, 2024, signature on the Michigan Family Protection Act (MFPA), the state now joins all others in decriminalizing and protecting paid surrogacy and in vitro fertilization (IVF).

Comprised of a package of nine bills, the MFPA provides protections for surrogates, parents, LGBTQ+ parents, and children born through surrogacy. Specifically, the new law:

• Legalizes and regulates surrogacy.
• Ensures that women who act as surrogates receive fair compensation, have legal representation, and are screened by medical professionals before entering into an agreement.
• Ensures that children born by surrogacy and assisted reproductive technology (including IVF) are treated equally under the law.
• Eliminates the need for LGBTQ+ families to go through a costly and invasive process to get documentation confirming their parental status.
• Makes it easier and cheaper for Michigan families to get formal recognition of their parental relationship to their child.

Surrogacy Requirements Under the New Law

While the MFPA legalizes surrogacy in the state, it does so subject to several limitations and requirements designed to protect the rights of all parties to the arrangement, including the child.

To execute an agreement to act as a surrogate, an individual must:

• Be 21 years of age or older.
• Have previously given birth to at least one child.
• Have completed a medical evaluation concerning the surrogacy arrangement.
• Have completed a mental health consultation concerning the surrogacy arrangement.
• Have independent legal representation throughout the agreement negotiation process, the execution of the agreement, and the duration of the agreement about the terms of the surrogacy agreement and the potential legal consequences of the surrogacy agreement.

To execute a valid surrogacy agreement, the intended parent(s) must:

• Be 21 years of age or older.
• Complete a mental health consultation.
• Have independent legal representation throughout the agreement negotiation process, the execution of the agreement, and the duration of the agreement about the terms of the surrogacy agreement and the potential legal consequences of the surrogacy agreement.

The surrogacy agreement itself must also meet all the following requirements:

• At least one party must be a resident of Michigan.
• The birth will occur or is anticipated to occur in Michigan.
• The assisted reproduction performed under the surrogacy agreement will occur in Michigan.
• Each intended parent, the surrogate, and the surrogate’s spouse, if any, must be parties to and sign and notarize the agreement.
• The agreement must be executed before a medical procedure related to the surrogacy agreement occurs.
• The surrogate must agree to attempt to get pregnant via assisted reproduction.
• The surrogate and their spouse or former spouse (if applicable) have no claim of parentage of the child conceived via assisted reproduction under the surrogacy agreement.
• The intended parent (or parents) will cover all agreed-on expenses of the surrogate, the assisted reproduction expense, and the medical expenses for the surrogate and the child.
• The surrogate can make all health and welfare decisions regarding the surrogate and the pregnancy and can choose their own healthcare practitioner.

Eliminating an Unfair, Harmful, and Outdated Law

Before the passage of the MFPA, which becomes effective 90 days after the current legislative session ends this year, Michigan was the only state with a law that made surrogacy a criminal offense.

In 1988, the state passed the Surrogate Parenting Act in response to the famous “Baby M” case. In that saga, a paid surrogate who conceived a child using her own eggs reneged on her agreement and decided to keep the child, leading to a lengthy and contentious legal battle with the biological father.

To avoid such confusion and conflict, the Surrogate Parenting Act declared that any agreements involving surrogacy were null, void, and unenforceable. This meant that a surrogate in Michigan (and their spouse, if any) was deemed the child’s legal parent and that biological parents who had a child through surrogacy had to go to a judge to be declared the legal parents or go through the traditional adoption process.

That is no longer the case, and the estimated 300,000 Michiganders who want to have children but aren’t able can now pursue their dreams of parenthood without the burden of an outdated and unfair law.

If you have questions or concerns about the new law or surrogacy in Michigan in general, please contact the attorneys in Kreis Enderle’s Family Law Practice Group today.