Michigan will become the last US state to decriminalize surrogacy contracts

LANSING, MI — Rachael Lang and her husband have the same last name as their biological daughter, but are not listed on her birth certificate. Instead, it bears the name of a surrogate mother who carried their daughter due to Lang’s previous cancer diagnosis.

Michigan’s ban on paid surrogacy contracts — the only state with such a law — has forced the couple to spend nearly a year trying to adopt their biological daughter.

State lawmakers voted Tuesday to change that, hoping to make it easier for people like the Langs to more easily be considered the legal parents of their children born through surrogate mothers.

“Every time I fill out the paperwork for her, they ask: are you a parent or guardian? And you have to check one box or the other. I don’t know what to check because I’m biologically her parent, but legally I’m her guardian,” Lang said. “So that makes me feel very conflicted and very sad about what I am to her on a piece of paper.”

According to the governor’s office, Michigan is currently the only state in the country where surrogacy contracts are criminally prohibited. A 1988 law passed by Republicans makes participation in a compensated surrogacy contract a crime.

An agreement between a woman acting as a surrogate and then transferring parental rights to the child is “void and unenforceable” under current law. This means that the intended parents must go through a judge or the adoption process to gain custody.

Parents who have testified in favor of changing that law say they have tried for months — sometimes years — to adopt their child, born through a surrogate mother.

“Decisions about whether, when and how to have a child are very personal. Politicians should not dictate the terms of these private decisions, which should be left to a family, their doctor, and those they love and trust,” Michigan Governor Gretchen Whitmer said in a statement.

Whitmer, who has said she will sign the package, added that the legislation is vital because “other states make it harder for you to start a family.” The package of nine bills also includes additional protections for other assisted reproduction, such as in vitro fertilization services, or IVF.

The package was introduced in a Senate committee just weeks after the Alabama Supreme Court ruled that frozen embryos can be considered children under state law, forcing some clinics in the state to pause IVF services. Alabama’s governor has since signed legislation protecting doctors from potential legal liability as a result of the court’s ruling.

In Michigan, Tammy and Jordan Meyers were among those who begged lawmakers to make the change based on their two-year legal battle.

The couple had filed for a pre-birth order in 2021 for custody of twins they were expecting through a surrogate mother. The twins arrived prematurely, before the order’s approval, and a judge denied custody of the couple, despite the twins being their biological children.

“If I’m honest, we’ve missed a lot of moments with our babies,” says Tammy Myers. “Time we should have just focused on the babies arriving safely, despite being eight weeks premature. We were not living in the miracle. We lived in the trauma.”

After a 23-month legal battle, the Myers won the right to adopt their twins at the end of 2022.

Tammy Myers watched from the balcony overlooking the Senate chambers Tuesday as lawmakers discussed the package. Before the vote, Senate Majority Leader Winnie Brinks drew attention to Myers, who ultimately received a standing ovation from lawmakers.

“There is no good reason that parents like Tammy and Jordan should adopt their own babies,” Brinks said.

Under the bills passed Tuesday, an individual can enter into an agreement to become a surrogate mother if he or she is at least 21 years old, has previously had a child, has undergone medical and mental health examinations and has independent legal representation.

The Michigan Fertility Alliance on Tuesday applauded the Senate’s passage of the bills, saying in a statement that it is ensuring that all “children born in Michigan through fertility treatments and surrogacy have access to a safe legal relationship with their parents.” ”

Several Republicans spoke out against the package of bills ahead of the Senate vote on Tuesday, with two Republicans siding with the Democratic majority on all nine bills. One Republican, Senator Thomas Albert, said the bills could “open Pandora’s box” and that it would “fundamentally redefine the family.”

Democratic state Sen. Stephanie Chang said during a speech in favor of the bills that they were about “promoting families” and ensuring “Michiganders can achieve their dreams of parenthood.”

The Lang family, who are still trying to adopt their one-year-old child, are among those who could potentially grow their family under the new law. In an interview before the election, Rachael Lang said she and her husband felt so broken by the process that they vowed not to try to have another child through surrogacy.

“But you know, if it continues, we would consider working with a surrogate again,” Lang said.