GESTATIONAL SURROGACY LAW MICHIGAN
Michigan Surrogate Parenting Act MCL Section 722.851, declares surrogacy contracts to be void and unenforceable as against public policy. However, courts may still grant pre-birth orders if no payment or compensation has been made to the surrogate by the intended parent/s.
Although the following guide can give you a better understanding of the general rules and regulations of surrogacy in Michigan, it is not meant to be used as legal advice. It is important to consult with an experienced attorney to guide you through your unique journey.
Below is a list of some of the most frequently asked questions about surrogacy in Michigan.
Is Gestational Surrogacy Legal in Michigan?
No. According to the Michigan Surrogate Parenting Act, “A person shall not enter into, induce, arrange, procure, or otherwise assist in the formation of a surrogate parentage contract for compensation.” Any such contract is void and unenforceable as contrary to Michigan public policy. It also establishes criminal liability and fines for those who engage in any compensated surrogacy. Uncompensated, or “compassionate,” surrogacy, however, is permitted in Michigan.
Is Traditional Surrogacy Legal in Michigan?
The Michigan Surrogate Parenting Act expressly prohibits compensated surrogacy arrangements of all kinds (including traditional) and holds all surrogate parenting contracts as void and unenforceable. However, traditional surrogacy arrangements that are altruistic/uncompensated are not specifically prohibited and are thus technically permitted, although this is a risky practice in this state.
Is Compensated Surrogacy Legal in Michigan?
No. The Michigan Surrogate Parenting Act expressly prohibits compensated surrogacy arrangements, including the payment of living expenses, and any violation risks the parties facing criminal liability and penalties.
Creating a Michigan Surrogacy Contract
Surrogacy contracts in Michigan are void and unenforceable as contrary to public policy.
Determining Legal Parentage in Michigan
Pre-birth and post-birth orders are permitted in altruistic surrogacy cases (no compensation) only. The intended parents must also be married and at least one of them must be genetically related to the child. Additionally, the intended parents and the surrogate must be represented by independent legal counsel.
Same-Sex Surrogacy in Michigan
Q: Is Same-Sex Surrogacy Legal in Michigan?
A: According to state law “all surrogacy agreements, regardless of the sexual orientation of the individuals involved, are prohibited by law in Michigan.”
Q: Are There any Additional Laws Impacting Same-Sex Parenting in Michigan?
A: No. There are no additional laws impacting same-sex parents in Michigan.
FAQ’s
Q: Are Surrogacy Contracts (Whether Compensated or Altruistic) Enforceable in Michigan?
A: No. Michigan is a risky state to proceed with a surrogacy arrangement in because the state statutorily declares all surrogacy contracts to be void and unenforceable.
Q: Are There Any Particular Laws for Parents Outside the U.S. Who Complete a Surrogacy in Michigan?
A: No. There are no particular laws that address international intended parents who complete a surrogacy in Michigan. Because of all of the restrictions, it is advised that international parents pursue a surrogacy in another state to protect their rights and interests.
Q: When do Intended Parents Need to Complete an Adoption After Birth?
A: If a pre-birth order cannot be obtained, then intended parents will need to pursue an adoption post-birth. Note that post-birth adoptions are permitted in compassionate surrogacy cases only. All unmarried couples and same-sex couples, regardless of genetic relationship to the child, will typically be required to complete a post-birth adoption to secure their parental rights. In addition, any married couple or single intended parent that shares no genetic connection to the child will also be required to complete a post-birth adoption to secure his or her parental rights.
Q: Does Michigan Allow Second-Parent Adoptions? Who Would Need to Complete a Second-Parent Adoption vs. a Stepparent Adoption (If Applicable)?
A: No. Second-parent adoptions are not permitted. Michigan only allows a single person or a married couple to adopt. Two unmarried persons cannot adopt together.
Q: If Intended Parents Cannot Complete a Second Parent Adoption, how can unmarried non-biological intended parents protect their parental rights?
A: Currently there is no protection under Michigan law to protect the parental rights of unmarried couples; consequently many unmarried couples choose to pursue surrogacy in another different state.
Q: What Happens in Cases Where Intended Parents Use a Donor Egg, Sperm or Embryo?
A: In some cases, pre-birth orders can be obtained when a married husband and wife use a donor egg, sperm, or embryo, and at least one of them is genetically related to the child in an altruistic, uncompensated surrogacy. The Michigan assisted reproduction statute, MCL333.2824(6) which is gender-neutral but limited to a married husband and wife states that “A child conceived by a married woman with the consent of her husband following the utilization of assisted reproductive technology is considered to be the legitimate child of the husband and wife.”
In cases where pre-birth orders cannot be obtained, the child would need to be adopted by the intended parents in order for full parental rights to be vested in the intended parents.
REPRODUCTIVE LAW PRACTITIONERS
Herb Brail
Troy, MI
hbrail@brail-law.com
(313) 278-8779
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