Michigan Senate committee takes up bills to repeal ban on compensated surrogacy agreements

A Michigan Senate committee heard testimony Thursday on a package of bills aimed at expanding options for assisted reproduction as lawmakers consider a repeal of a decades-old ban on compensated surrogacy for parents who wish to have children, but are unable to carry out a pregnancy themselves.

House Bills 5207-5215 would establish the Fertility Health Care Act, which supporters argue will remove barriers to starting a family through assisted reproduction, like surrogate parenting. Surrogate parenting refers to the process in which a woman will carry a pregnancy and deliver a child for another family. 

Michigan has had a ban on compensated surrogacy parenting since 1988. The process has still taken place in Michigan since then, but parents and advocates for surrogacy parenting say there are legal barriers which make it difficult for many in the state to have children if they are unable to through traditional means.

Previous efforts to repeal the ban have failed, but last November lawmakers in the Michigan House voted along party lines to approve a nine-bill package that would repeal the existing ban and establish the Fertility Health Care Act. If the Senate, which has a 20-18 split among Democrats and Republicans, were to pass the bills this year, they would be poised to advance to Gov. Gretchen Whitmer’s desk for her signature.

The Senate Committee on Judiciary, Public Safety and Civil Rights on Thursday took testimony from a group that included legal experts, parents whose children were born through surrogacy and medical practitioners who voiced support for the bills; as well as representatives from Right to Life of Michigan and the Michigan Catholic Conference who oppose the legislation.

Tammy Myers, of Grand Rapids, and her husband had their second and third children — a set of twins, born through surrogacy in 2021 — after Myers was diagnosed with breast cancer six years earlier and was no longer able to carry a pregnancy to term. The twins, a boy and a girl, were born earlier than expected — before the Myers could complete the legal process of adopting the children required by Michigan law.

“Despite being their biological parents and having no opposition to the parentage from our carrier and her husband, my husband and I were denied the rightful recognition on the twins birth certificates,” Myers testified.

“In the early hours of their lives, we had no life-saving medical decision-making power for their care.”

It took nearly two years for the Myers to legally adopt the twins. Myers’ attorney, Melissa Neckers, of Grand Rapids, said Michigan’s existing laws don’t match modern fertility health care practices.

“These cases are happening a lot,” Neckers said. “People are entering into surrogacy agreements all the time in Michigan. The technology exists. People are desperate to have babies and the law has not caught up with that.”

More: Troy woman struck by breast cancer finds surrogacy as a path to motherhood

Supporters for the Fertility Health Care Act said Michigan is the only state which currently has a ban on compensated surrogacy agreements.

The bill package does have opponents — Genevieve Marnon, legislative director for anti-abortion organization Right to Life of Michigan, said the state’s current ban on compensated surrogacy agreements prevents the “buying and selling of children.”

Marnon also raised concerns about the proposed legislation eliminating the penalties associated with current law for using minors or developmentally disabled women as surrogates. The bills considered by the committee Thursday require those entering a surrogate agreement to be at least 21-years-old, complete consultations with medical and mental health professionals and have independent legal representation.

“Our current law strikes a good balance between protecting vulnerable women and children while allowing infertile couples options to expand their families,” Marnon said.

Rebecca Mastee, policy advocate for the Michigan Catholic Conference, also testified in opposition of the bills, raising concerns that the package currently doesn’t detail any requirements for the relationship between two individuals seeking to have a child through surrogacy.

House Rep. Samantha Steckloff, D-Farmington Hills, is the lead sponsor of the package. A survivor of breast cancer, Steckloff told the committee of how she delayed the start of chemotherapy by a month in 2015 to go through in-vitro fertilization (IVF), allowing her and her husband to possibly start a family of their own one day.

“Michigan is the only state in the nation with a criminal ban on surrogacy contracts,” Steckloff said. “Driving these arrangements underground only serves to put prospective parents and the children they hope to raise in legal jeopardy. House Bills 5207-5215 lifts this ban, and more importantly creates a clear legal link between parents and their children born through assisted reproduction.”

Steckloff also referenced a recent ruling in Alabama, where the state’s Supreme Court ruled in February that embryos fertilized through IVF are considered “extrauterine children” and legally protected like any other child. Advocates for IVF warn the ruling could restrict access to the practice if legal protections aren’t put in place.

Additional testimony on the package will take place next week, said Sen. Stephanie Chang, D-Detroit, who chairs the committee. It’s possible members could vote on reporting the bills to the full Senate floor then.

Senate Majority Leader Winnie Brinks, D-Grand Rapids, has voiced support for the legislation, issuing a statement Thursday in which she said: “It is high time our laws evolve to mirror the advances made in assisted reproductive technology, and we are committed to empowering Michiganders to pursue parenthood without unnecessary hurdles.”

Contact Arpan Lobo: alobo@freepress.com. Follow him on X (Twitter) @arpanlobo.

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