Is paid surrogacy coming to Michigan?

In November 2022, Michigan voters adopted a state constitutional amendment enshrining a fundamental right to “reproductive freedom,” which includes abortion up to birth, sterilization, contraception, prenatal care, and infertility care. That December, pro-abortion Governor Gretchen Whitmer signed an executive order instructing her administration to “provide the maximum protection possible for the fundamental right to reproductive freedom” in the Great Lakes State. The newly-ascendant Democrat legislature has been busy repealing most of Michigan’s pro-life laws.

In October 2023, Farmington Hills Democrat State Representative Samantha Steckloff introduced the “Assisted Reproduction and Surrogacy Parentage Act” to erase the Great Lakes State’s regulations and safeguards on surrogacy. The legislation is being fast tracked in the current session of the Legislature. The bill passed the Michigan House November 9, just 16 days after the bill was introduced and is pending in the Senate, where proponents hope to rush it through early in the new year.

Genevieve Marnon, Legislative Director of Right to Life of Michigan, spoke with Catholic World Report on the subject.

CWR: What is the current legal situation of surrogacy and surrogacy contracts—paid and altruistic—in Michigan?

Genevieve Marnon: Altruistic, non-compensated surrogacy is legal in Michigan. It is a felony to pay for a surrogate, and it is a felony to solicit a minor or developmentally disabled woman to serve as a surrogate. Surrogacy contracts are void and unenforceable in the state. The child born of a surrogate is the legal child of the surrogate and a legal adoption must occur for the “intended” parents to become the legal parents. This legal framework provides protection for the child to prevent any type of trafficking or situations whereby the child(ren) may end up in conditions that are not in the child’s best interest. The current laws also prevent exploitation of poor and vulnerable women who are typically the women who serve as both surrogates and egg “donors.” While egg donation, sperm donation, artificial reproductive technologies (ART), in vitro fertilization and a surrogacy are all legal in Michigan, there are fewer incentives to expand these types of reproductive technologies because contracts allowing for third party brokers are not legal, cutting the money out of the process when there are no legally enforceable contracts.

CWR: Where is the push to change Michigan’s surrogacy laws coming from? Is there popular demand for this?

Marnon: The main sponsor of the package of surrogacy bills of which HB 5207 is key is a breast cancer survivor who is now infertile but who froze her eggs prior to her cancer treatment. She understands that she will need to a use a surrogate (or gestational carrier) to have children who are genetically related to her. While it is not our issue, there is a push from the LBGTQ community to legalize surrogacy contracts. Also, as infertility increases as women put off childbearing until later in life, there seems to be a bigger interest in commercial surrogacy. Finally, the fertility industry is a multi-billion-dollar industry and Michigan is an “untapped” resource for them.

The bill package, however, goes much farther than simply legalizing surrogacy contracts. They also change the parentage laws in Michigan to eliminate “mother” and “father” from birth certificates and replace those terms with parent one and parent two (though technically there is nothing in the bills that limit the number of intended parents to two). The bills as written allow for pre-birth orders which means the unborn child is considered the legal property of the intended parent(s) even before birth. The bills allow for “intended” parents to be unwed or unrelated to the child. The intended parents need not live in the same home or even in the same state, setting up nothing more than legal ownership of a human being rather than parentage in the traditional sense.

CWR: Under the Steckloff bills, how would Michigan’s surrogacy laws change?

Marnon: Commercial, compensated surrogacy contracts would be legalized. “Intended” parents would be allowed to have pre-birth orders which would list their names on the original birth certificate regardless of their genetic relationship to the child, thus depriving the child of knowing his/her genetic origins. (There is another set of bills moving through the legislature that will unseal birth certificates for adoptees upon reaching 18 because “every child has the right to know their genetic heritage” — except, of course, those children who were conceived using donor eggs/sperm which, in many cases, they would not know unless their intended parents told them).

The bills allow “intended” parents to be named the legal parents even if they are unmarried, use donor eggs and sperm (thus not being related to the child) and a use a surrogate. So, these bills will allow for the purchase of gametes and a womb and then the procurement of a child who could be “owned” by two unmarried individuals who do not live together and are unrelated to the child. Current Michigan law does not allow for two unmarried individuals to adopt a child together, so under Michigan’s current law, if a couple used donor eggs, donor sperm and a surrogate, they would have to have one of the “parents” adopt the child, and the other “parent” would not be named on the birth certificate nor be considered a legal parent. So, the bills would legalize two parent adoptions in the state.

Currently, two gay men (or two heterosexual individuals etc.) who used donor eggs, donor sperm, and a surrogate (in other words were not genetically the child’s father or mother) and who were not married could have a child, but only one of them could adopt and be listed as a parent on the birth certificate. In addition, the bills will change inheritance laws such that anyone who “consented in a record” to be an intended parent would be considered the child’s parent for inheritance purposes. So, if the person who “consented in a record” to become a parent dies, then if a child is conceived and born later, the child would be an heir of the deceased intended parent’s estate. So, regardless of martial status or genetic relationship, if a person put in a “record” (undefined in the bill) that he or she wanted to be the “parent” of a child, and the other “parent” gave birth or the surrogate he or she purchased gave birth within 45 months of the now deceased “parent’s” death, the child would be able to inherit from the deceased “parent’s” estate. So, for example, a man has a gay partner and signs on a record that he intends to be a parent with his partner, and then dies and the surviving gay partner purchases an egg and a surrogate and a child is born, the child will have the now deceased “intended parent’s” name listed on the birth certificate and will be eligible for any survivor benefits or inheritance from the deceased intended parent’s estate. This will force executors of estates to delay distribution of those estates for upwards of 36 months just in case a child is brought into existence because there is a “record of consent” somewhere indicating that the deceased heir might become a parent someday with purchased eggs and a surrogate.

CWR: So, a child utterly unrelated to two persons who are unrelated to each other except for commissioning this child would become the legal (remember, no adoption needs to happen under these bills) parents of that child whom—for all practical purposes—they did everything to make an orphan, at least generically and gestationally?

Marnon: Yes, that is correct! These bills create a legal framework to produce children who could be legally “owned” by two individuals who are not married, do not live together, and who are not biologically related to the child. Current law does not allow for second-parent adoptions of unmarried individuals. Most states and countries where surrogacy is legal limit intended parents to married couples where at least one of the parents is biologically related to the child or at the very least require legal adoption in cases where neither parent is genetically related to the child. That is a safeguard for the children to prevent them from being “purchased” for nefarious purposes.

CWR: Steckloff claims that she wants to give “equal rights” to all “families,” regardless of their origin. The Supreme Court’s legalization of homosexual marriage—Obergefell v. Hodges—was in part a decision related to Michigan limits on such “marriages.” To what extent do you think this legislation is intended to create “procreative options” for otherwise sterile “marriages?”

Ms. Marnon: I believe that is a very large part of the purpose of the bills but not the only reason. I say that because they go well beyond simply legalizing surrogacy contracts by changing all the parentage laws and allowing for “intended” parents to be legal parents regardless of marital status, sexual orientation, genetic relationship to the child, or gender. Given the fact that gays and lesbians can now legally marry in every state, there is no reason the current law is a barrier to otherwise sterile “marriages.” Because a gay couple can currently purchase a donor egg, get a female friend to volunteer to be a surrogate, and then adopt the child together after birth, there is no reason to change the law to accommodate gays and lesbians except for the fact that these bills allow for non-married individuals to be listed as legal parents on the birth certificate and they allow an easier path for people to purchase a surrogate than trying to find an altruistic surrogate and go through a legal adoption.

CWR: Artificial reproduction has made it possible to slice and dice maternity into genetic, gestational, and social components. Under the proposed laws, what would be the legal status of each kind of “mother” in Michigan?

Marnon: Under the proposed Michigan laws, only the intended “parents” would be legal parents. Gamete donors and surrogates wouldn’t count and have no rights.

Interestingly, the bills go out of their way to eliminate the word “mother” and “father” and replace those terms with “parent.” They also eliminate the term “paternity” and replace it with “parentage.” In HB 5210, the term “father” is replaced with “individual who did not give birth.” Even HB 5212 which amends the revocation of paternity act, eliminates the term “father” and replaces it with “parent.” The terms husband and wife are replaced with the term “spouse” and gender is essentially eliminated from all of the parentage laws in the state.

CWR: Modern surrogacy arguments date back to 1980s Baby M case in New Jersey, where the woman who bore the child in a surrogacy arrangement subsequently decided she did not want to surrender the child she bore. What would become of the Mary Beth Whiteheads of Michigan under this law?

Marnon: Interestingly, the Baby M case was brokered by a Michigan attorney, so it is because of that case that Michigan moved to become the first state to criminalize commercial surrogacy. If a traditional surrogate in Michigan (who is the biological mother as Mary Beth Whitehead was) were to give birth under current Michigan law, she would be the legal mother until she opted to relinquish the child for adoption. No contract could be employed to legally compel her to hand her child over. However, in her case, since the intended parents used the father’s sperm, he would be authorized under current law to initiate custody proceedings under Michigan’s Paternity Act and could sue for full custody. Now, whether or not a judge would grant it, it would be left to the courts and the best interest of the child. Best case scenario for a woman like Mary Beth Whitehead would be shared custody with the biological father and his wife. If the proposed bills were to become law, Mary Beth Whitehead would be compelled under the law to follow the terms of the surrogacy agreement and hand the child to the intended parents upon birth. A similar case just played out in California (though the gestational carrier was not the biological mother as donor eggs were used) where the surrogate wanted to keep the triplets when she discovered the commissioning parent was a single, disabled man living in deplorable conditions in his parent’s basement. She fought to retain custody but ultimately the courts upheld the contract and she was forced to relinquish all three babies to the purchasing father.

CWR: Is there a correlation between states—especially blue states—legalizing abortion-on-demand and promoting commercial surrogacy?

Marnon: 48 states currently have legalized commercial surrogacy. Only Michigan and Nebraska ban the practice. So, I don’t see a connection necessarily between legalized abortion and commercial surrogacy. New York allowed legal abortion before Roe v. Wade but was one of the last states to legalize commercial surrogacy, while Louisiana nearly completely bans abortion but has legalized commercial surrogacy since 2016. So, while there does seem to be some connection between more progressive states adopting commercial surrogacy laws, the connection is not absolute. That said, the tread lately has been to not only allow for compensated surrogacy, but to change the law to allow for pre-birth orders, allow for unrelated, unmarried “intended” parents and to change laws to cater to the LGBTQ community. That expands surrogacy beyond other, more conservative states that limit compensated surrogacy to married couples using their own gametes. If the Michigan bills get passed, I believe they will be the most liberal of all the states – on par with California, and Michigan will become a surrogacy tourist destination alongside being an abortion destination.

CWR: Abortion proponents have not only pushed for protection of “rights of reproductive freedom,” they have generally also sought state subsidies for those “rights” for the poor, indigent, and those of lesser income, as happened in Ohio. What about assisted reproduction and surrogacy cases?

Marnon: At this point, there is no bill to allow for state subsidies for ART or surrogacy, but given the passage of Proposal 3 and the constitutional “right” to reproductive freedom which encompasses infertility care, I imagine as soon as the surrogacy bills are passed, there will be a push to have Medicaid cover the expenses.

CWR: Apart from the question of the child’s rights, most commercial surrogacy arrangements involve significant economy inequalities between contracting couples and the genetic and/or gestational surrogate. Do the proponents of surrogacy in Michigan speak to those issues?

Marnon: So far, there has been no discussion of the disparities between the contracting parents and the surrogate from the supporters of the bills, but certainly there has been from the opponents. The bills do not lay out any minimum fees or labor costs.

CWR: Would there be payment for genetic material (sperm, ova)?

Marnon: Under the current law, egg and sperm donors are compensated for their time and trouble with sperm donors receiving approximately $100 per donation and egg donors receiving between $5,000 – $10,000, but the bills do not authorize additional “payments” for genetic material.

CWR: Artificial reproduction (e.g., in vitro fertilization) often involves multiple fertilized ova, followed by selective implantation, with large numbers of ova consigned to cryopreservation. What would the status of such frozen embryos be in a state that does not treat the unborn as persons? Could they be bought/sold as an additional aspect of commercial reproduction?

Marnon: Embryos cannot be bought or sold under Michigan law, and the surrogacy bills do not change that.

CWR: What is the likelihood of defeating this legislation? What role is the Catholic Church likely to play in that process?

Marnon: The Michigan Catholic Conference has been very involved in testifying against these bills and in educating legislators. My counterpart at MCC and I have been working collaboratively to try to educate people on the dangers of these bills.

The bills passed out of the House on November 9 along party lines, 56-53 (one Republican absent). A Senate committee will take them up in January; Democrats have a two-seat majority in that chamber.

We certainly are going to work to make people aware of just how radical and extreme these bills are. I think many people just imagine surrogacy as a means whereby infertile married couples can “have a baby.” Seeing just how radically these bills change what we call “parentage” and the parent-child relationship will hopefully open their eyes. And we can pray.