Updated: Thursday, March 14, 2024
Bills to repeal a broad criminal ban on surrogacy in Michigan are on their way to the full Senate, after Democrats on the Senate Committee on Civil Rights, Judiciary and Public Safety passed them Thursday afternoon on a party-line vote.
The two Republicans on the committee, Senator Jim Runestad (R-White Lake) and Sen. Ruth Johnson (R-Holly) proposed several amendments they said addressed their concerns: that the legislation doesn't specify that it is a felony to engage a minor or "developmentally disabled adults" as surrogates; or that the surrogate may not have the benefit of independent legal representation if the intended parents are paying for the surrogate's attorney; and that surrogates might be coerced into an abortion if the intended parents wish to terminate the pregnancy, due to fetal anomalies or other issues.
"I believe it is unethical to include a provision in a surrogacy contract that could force the surrogate to have an abortion, should the child she is carrying have a certain disease, unintended gender, or just divorce of the intended parents, or almost [an] unlimited number of circumstances," Runestad said, proposing an amendment to prohibit termination clauses in surrogacy contracts.
But Democrats voted down each proposed amendment, saying they believed the concerns were already addressed by the legislation. The bills would require a surrogate to be over the age of 21, have previously given birth, and have completed a medical evaluation and a mental health consultation.
The legislation also says surrogates must "have independent legal representation of the individual's choice by an attorney licensed in this state," and that contracts must give the surrogate the right to make all health decisions. "The surrogacy agreement must include information about each party's right ... to terminate the surrogacy agreement," it reads.
"I believe it is already a crime to coerce someone to an abortion," said the committee's chair, Sen. Stephanie Chang (D-Detroit). "Also in the bill, House Bill 5207, it states that the agreement has to 'permit the surrogate to make all health and welfare decisions regarding the surrogate and the pregnancy.' And so, this amendment is not necessary."
The bills would also create a process for establishing parentage of children born via assisted reproductive technology, including IVF or sperm or embryo donations.
Under the act, genetic testing couldn’t be used to challenge the parentage of an individual who was a parent through assisted reproduction — meaning a sperm donor, for example, couldn’t argue that a child was legally theirs, rather than an intended parents’. And donors themselves would be protected in turn: courts wouldn’t be able to use genetic testing to decide that an embryo donor bears legal responsibility for a child created from their donation.
Instead, the individual who gives consent for a child to be conceived by assisted reproduction with the intent to parent that child, would be the legal parent of that child.
The legislation now moves to the full Senate, which has a Democratic majority and could vote as early as next week.
Original post: Thursday, March 7, 2024
While much of the national attention on reproductive rights is focused on IVF, Michigan is having a debate over surrogacy. It’s the only state that makes it a felony to arrange to pay someone for carrying a surrogate pregnancy, and Michigan’s courts don’t recognize or enforce surrogacy contracts.
That, many families say, has left parents, surrogates, and children in legal limbo. But now, bills to legalize paid surrogacy and recognize surrogacy agreements are moving through the state Legislature: Democrats in the state House passed the Michigan Family Protection Act late last year, and on Thursday, the Senate Civil Rights, Judiciary, and Public Safety Committee held what’s expected to be the first of two hearings.
Tammy and Jordan Myers’ case gained national attention when the Grand Rapids couple was initially denied parental rights to their own biological twins, who were born via a surrogate after Tammy Myers’ battle with cancer. When the twins were born prematurely and had to be in the NICU, Myers told state senators, they were terrified.
“The NICU became our second home, a battleground where we fought not only for our babies’ fragile lives, but also for our parental rights, as two Grand Rapids judges denied our requests for the legal rights to our babies,” Tammy Myers said at the hearing. “In the early hours of their lives, we had no life-saving medical decision-making power for their care. Amidst the beeping of machines and the hushed whispers of medical staff, we watched helplessly as medical bills piled up, our financial burdens mounting with each passing day.”
Unable to put the twins on their health insurance, Medicaid ultimately covered the medical bills, Myers said. And the family had to undergo a long, expensive process of legally adopting their own children.
“We were forced to prove our worthiness through invasive psychological testing, home visits, and endless meetings to discuss our parenting plan to prove that we were fit to raise our twins, Eames and Ellison. Despite finally being granted legal parenthood of our twins almost two years after they were born, our wounds from this situation remain raw.”
LGBTQ families are especially vulnerable under the state's current surrogacy framework, several parents told lawmakers in both the Senate and House hearings. Nkenge Browner, a programming director at Mothering Justice, spoke about realizing how tenuous her family’s legal situation was when she and her ex-wife were divorcing.
“I share my son with my ex-wife, who is not a biological parent, but mother all the same,” Browner said. “During the divorce, we realize that Michigan courts struggle with understanding our family. And while deciding the fate of our child's physical custody, parenting time, education and health insurance, we realized that her connection was legally insecure.
“Without proper legislation, our children are at risk for losing insurance, the financial and emotional protection of two parents, and legally upheld parenting time. This legislation is critical because Michigan law lacks clear standards to protect both parents [and] therefore the child. Ultimately, it leaves our children unprotected and vulnerable.”
But some conservative and religious groups oppose the legislation, arguing that while Michigan’s current law doesn’t prevent “altruistic” surrogacy, the proposed changes could lead to the exploitation of surrogates and treating babies like commodities.
“At the core of such agreements is a contract for a human being,” Rebecca Mastee of the Michigan Catholic Conference testified on Thursday. While expressing sympathy for families struggling with infertility, Mastee pointed to surrogacy bans in several European countries.
“In the U.S., then, states with permissive surrogacy laws become a destination for wealthy individuals or couples from countries where the practice is banned. They travel here to obtain a surrogate and a child. As currently written, House Bill 5207 would allow Michigan women to be taken advantage of by this surrogacy.”
Genevieve Marnon, the legislative director for Right to Life of Michigan, told state senators that surrogacy contracts could lead to coerced abortion.
“Surrogacy contracts, almost without exception, contain abortion clauses. Abortion clauses dictate that the surrogate, at the behest of the intended parents, submit to an abortion if the intended parents change their mind, discover a fetal anomaly, or if more babies that survived the embryo transfer, there are more than they wanted,” Marnon said. “While a woman cannot be physically forced to abort if she refuses, heavy legal and financial consequences may be imposed on her.”
But supporters of the legislation say the best way to protect surrogates is to legally recognize surrogacy contracts.
Jorie Dugan, a human rights attorney with the Center for Reproductive Rights, told senators the legislation “ensures that a surrogate has a right to make all health and welfare decisions regarding themselves and their pregnancy, to use a health care provider of their own choosing, and to have separate, independent legal representation, which is critical to ensuring the surrogate's rights and interests are represented and protected.”
Republicans have accused Democrats, who hold a majority in the Senate and in the committee, of essentially fast-tracking the bills. Senator Jim Runestad, the minority vice-chair, asked both Marnon and Mastee to work with his office on possible amendments that could potentially address their concerns.
Additional testimony will resume when the committee meets again next Thursday, March 14.
