Whitmer repeals ban on surrogacy contracts in Michigan

Gov. Gretchen Whitmer signed bills Monday to lift Michigan’s 35-year-old ban on the use of paid pregnancy surrogates.

Michigan was one of the first states to outlaw paid surrogacy contracts in 1988. Now, Whitmer said, Michigan will be the final state in the nation to allow families to use in vitro fertilization with compensated surrogates without fear of criminal prosecution.

“So it’s good to finally clear this arcane, cruel law off the books,” she said.

Whitmer said in vitro fertilization has become a common way for infertile and LGBTQ couples to have children and this change is long overdue.

“I can’t speak to why this became a part of Michigan law in the first place, but to be the last state to recognize that surrogacy is an honorable, important scientific way for people to grow families, it’s kind of a shame that it took Michigan this long,” she said.

The surrogacy controversy began in the 1970s as Dearborn attorney Noel Keane began arranging contracts across the country between women willing to be surrogates and couples unable to conceive and carry a pregnancy. In 1986, the controversy boiled over in the “Baby M” case as a paid surrogate in New Jersey attempted to back out of the agreement after the infant was born. It was the first major court battle over surrogacy.

Two years later, Michigan enacted law that declared surrogate parenting contracts unenforceable, made entering into a contract a misdemeanor and made arranging a contract a felony punishable by up to five years in prison.

Since then, surrogate parenting and IVF have become more common and accepted as family planning options. Whitmer and Democratic leaders said the new laws are part of their campaign to guarantee reproductive freedom rights.

The IVF fight in Michigan has broken down largely along party lines. The bills signed by Whitmer cleared the Legislature, which is led by Democrats, with only two Republican votes. GOP leaders said the potential for exploiting of low-income women was one of the reasons.

Democrats said that is a hollow argument because Michigan’s new laws set a legal framework for surrogacy agreements that would otherwise not exist.

The Michigan Catholic Conference, one of the organizations that lobbied against lifting the ban, was unpersuaded.

“For-profit surrogacy contracts that pay females for the use of their reproductive means violate the inherent dignity of women and unethically allow children to be the subject of a contract,” said MCC President Paul Long, who added the practice “undermines the significant prenatal bond formed between the child and the mother who nurtured him or her through birth.”

Jay Kaplan, staff attorney for the LGBTQ+ Rights Project of the American Civil Liberties Union-Michigan, said the new laws are an overdue update of family law in Michigan.

“It recognizes the diversity of families and how families are able to be created,” he told Michigan Public Radio. Kaplan said same-sex couples have a constitutional right to marry, but many have to go through “fictional mechanisms” where one parent has to adopt a child a couple is raising together.

Representative Samantha Steckloff (D-Farmington Hills) is one of the bill sponsors. She said the rights of parents, children and surrogates were not clear until now.

“In Oakland County it’s very different than in western Michigan, so it kind of depends on what judge you have,” she said. “We even had a judge testify who said how difficult it is to make these rulings because there is no intended path and these bills create that.”