Michigan Takes Another Look at Assisted Reproduction

Currently, Michigan is the only state that does not recognize surrogacy agreements and criminalizes those entering into such agreements. The Surrogate Parenting Act from the 1980s renders any surrogacy parentage contract void and unenforceable as contrary to public policy.

In addition to such agreements being void, persons entering into such agreements are subject to felony charges that could bring fines up to $50,000 and five years in prison. Children born under such contracts are placed within the jurisdiction of the county family courts for a judge to determine the "best interests" of the child.

Last month, however, the House Judiciary Committee of the Michigan House of Representatives passed a raft of bills aimed at eliminating these barriers to assisted reproduction. Among the bills passed was HB 5207 that would create a new act out of whole cloth: the Assisted Reproduction and Surrogacy Parentage Act; the old act would be repealed.

At the root of the legislation is the definition of "assisted reproduction": a method of causing pregnancy that does not involve sexual intercourse. There are many such methods recognized in the bill:

• intrauterine, intracervical or vaginal insemination;

• donation of gametes;

• donation of embryos;

• in vitro fertilization and embryo transfer;

• intracytoplasmic sperm injection; and

• assisted reproductive technology

Any child conceived by sexual intercourse would not fall within the scope of the bill. Here is the current legislative analysis of HB 5207.

The bill defines the parent-child relationship in some new ways. The donor of biological material used in the assisted reproductive process is excluded from being a "parent" under the new bill.

To be eligible for a surrogacy contract, a woman must be 21-years of age and have had at least one child. Medical and mental health consultations are also required, and the surrogate must have access to independent legal consultation, paid for by the intended parents.

Of course, the county family courts are called into play in the proposed legislation. Under the bill, court proceedings would be filed in the county where the child was born, will be born, or resides. Venue is also proper where a parent or "intended parent" resides, or where a proceeding has been commenced for the administration of the estate of an individual who is or who may be a parent under the bill. Complicated venue provisions in this bill.

The bill also contains extensive consent provisions calling for written assisted reproduction agreements or surrogacy contracts. Disputes between individuals who give birth to the child and individuals who claim to be parents under the reproduction agreement are anticipated in this proposed legislation. Therefore if passed, this legislation will give rise to a whole new type of custody jurisprudence.

Representative Samantha Steckloff from Farmington is the primary sponsor of the bill. She has stated that for many families, traditional methods of childbirth are not available due to health or safety issues. Rep. Steckloff sees revision of the parentage laws in Michigan as the necessary first step.

Critics of the proposed legislation claim that it will commercialize surrogacy in our state and give rise to reproductive commerce. Some fear that women who serve as surrogates could be exploited in poorly structured transactions.

For our part, we blogged about an interesting surrogacy case from the Washtenaw County Probate Court nearly 15-years ago. Here is a link to the post which takes a look at a Michigan Court of Appeals decision that upheld the Surrogate Parenting Act.

If you or a family member would like to discuss matters of surrogacy or disputes that arise over assisted reproduction, call our office to schedule a free consultation.