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

It took nearly two years for Tammy and Jordan Myers of Grand Rapids to adopt their biological children, who are twins, after they were born via a surrogate in 2021. It was a process, Tammy Myers told lawmakers on Wednesday, that was “heartbreaking, offensive and extremely costly.” 

Michigan’s current laws don’t allow for contracts for surrogacy. Although the surrogate didn’t attempt to gain custody, she and her husband were listed on the birth certificate as the parents. 

The Myers had filed for a pre-birth order to establish custody before the twins, Eames and Ellison, were born. But they were born two months early, before the paperwork had been approved by a judge. When they filed emergency paperwork, the judge dismissed the case, denying custody and beginning what became a legal saga that garnered national attention

And although the Myerses eventually were able to adopt their biological children, Tammy Myers said the hardest part is knowing that the “legal chaos overshadowed the first 23 months of their children’s lives — moments that can’t be replaced.”

And now she’s been fighting for legislation to ensure no other parent endures what her family did.

In Michigan, not only are surrogacy contracts unenforceable and void, but they are illegal. Michigan is the only state to criminalize surrogacy contracts.

A package of bills voted through by the House Judiciary Committee on Wednesday aims to strike out barriers to surrogacy for Michigan families and implement protections for surrogates, parents and children.

Leading the package is state Rep. Samantha Steckloff (D-Farmington Hills), who told the committee last week during a hearing that the package would update Michigan’s rules surrounding parentage established in the 1980s to better reflect the reality of the path to parentage for families in Michigan.

Rep. Samantha Steckloff (D-Farmington Hills) listens to testimony during a House Judiciary Committee on October, 25, 2023. (Photo: Anna Liz Nichols)

And the issue is personal for Steckloff, who like Tammy battled breast cancer and is unable to naturally conceive, and is now looking at her options for growing her family.

“There are so many reasons why a family might have an untraditional route to parentage such as health-related issues that make becoming pregnant, impossible, or dangerous,” Steckloff said. “My husband and I and many Michigan families like ours would like to start and grow a family. But in order to do that, legally in this state, many of our parentage laws need to be updated. This package is about parentage, and protecting our families, protecting and dignifying all of Michigan’s children no matter how they were brought into this world.”

Although surrogacy itself is legal in Michigan, contracted surrogacy is banned. Taking part in a surrogacy contract can result in a misdemeanor charge for participating parties in Michigan, punishable by up to one year in prison and a $10,000 fine. Organizing or assisting such an illegal contract is a felony punishable by up to five years in prison and a $50,000 fine.

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 years old 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.

Representatives from the Michigan Catholic Conference (MCC) and Right to Life of Michigan offered opposition to the bills, saying states and countries that have legalized surrogacy contracts experience ethical and legal issues with a process that essentially puts children for sale and can exploit vulnerable women.

“This package … opens Michigan to commercialized surrogacy, reproductive commerce and potential reproductive exploitation, but let’s also not lose sight that at the core of such agreements is a contract for a human being, MCC policy advocate Rebecca Mastee said.

Michigan’s current parentage laws leave same-sex couples in a gray legal area when establishing custody.

Katie Christian, a Michigan resident currently attending Columbia University, told the committee last week that she grew up bragging about her two moms. But when she learned the breadth of what they had to endure from the legal system 20 years ago, she was shocked.

Katie Christian testifies at a House Judiciary Committee on October, 25, 2023. (Photo: Anna Liz Nichols)

Christian’s moms had her through artificial insemination years before same-sex marriage was recognized in Michigan. That meant that the mother who had not carried was not legally her parent.

It was a two-year-long battle for both her parents to be recognized as her legal parents. At the end, her mom who had parental recognition had to temporarily terminate her parental rights.

“For a few minutes of my life, I was not the legal daughter of either of my mothers,” Christian said. “Despite having two loving mothers who wanted more than anything to care for me, I was, at that moment, a child of the adoption agency my mothers worked with and my mothers were no more than legal strangers to me in ‘the eyes of the law.’” 

After the committee voted through the bills, Myers said she never wants another family to endure anything like she and her family went through. Although she is the legal parent of all her kids and the twins are almost three now, her battle doesn’t feel over. 

“My family’s complete, but you know, I think it’s hard to understand a broken process like this until it’s something that does impact you,” Myers said. “The emotional and financial ramifications are still impacting my family. It’s just really important and I’m really passionate about making it better for other people.”

authored by Anna Liz Nichols
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