Michigan Legislature Passes Bills to Legalize Surrogacy and to Ensure Children in All Families Have Equitable Access to Parentage Protections

The Michigan legislature yesterday passed the Michigan Family Protection Act, a bill package to decriminalize contractual surrogacy and to ensure that all children born via assisted reproduction—including those with LGBTQ parents—can have equitable access to legal parentage ties from birth, including via a simple acknowledgment of parentage form.

The Overview

The Michigan Family Protection Act (MFPA; HB-5207-5215) passed with bipartisan support and now goes on to Governor Gretchen Whitmer (D), who has expressed her support. The Michigan Fertility Alliance (MFA), a grassroots organization that has been one of the leading advocates for the legislation, explained in a press statement that the MFPA will:

• Ensure that children born through fertility treatment (such as in vitro fertilization) have established legal parentage from the moment of birth.
• Provide clear standards for establishing parentage through surrogacy and ensure clear protections for all parties involved in a surrogacy arrangement—children, parents, and people acting as surrogates.
• Ensure children born to LGBTQ families have the security of a legal tie to their parents, including through a voluntary acknowledgment of parentage. This administrative form has been available to non-LGBTQ parents for decades.

Stephanie Jones, founder of the MFA, said:

Today’s vote is a victory for parents and their children, as this MFPA is critical to ensuring that all children can access the security of a legal tie to their parents, regardless of the circumstances of their birth. If signed into law, it will secure the ability of parents to provide health insurance for their children, make crucial decisions about things like emergency medical care and education, and ensure children have access to social security benefits and inheritance rights, which are all derived from legal parentage. It will also ensure children don’t abruptly lose a relationship with a parent in circumstances where a couple separates, or one parent dies.

Let’s look more closely at what this all means.

Contractual Surrogacy Decriminalized

Among other things, the MFPA now permits surrogacy contracts. As the MFA explains at its website, “Michigan, which was the first state in all of the U.S. to make surrogacy contracts a felony, was the only state that criminalized contractional surrogacy.” The state also did not provide a clear path to parentage for parents who used an unpaid Michigan-based gestational surrogate. This meant that most judges denied the genetic, intended parents pre-birth parentage rights, forcing them to adopt their own child after birth, as in the case of Jordan and Tammy Myers, a different-sex couple.

Secure Paths to Parentage After Assisted Reproduction

The MFPA states that someone who consents to assisted reproduction with the intent to be a parent of the resulting child is a parent of the child, and that donors are not parents. Consent can be in a record signed before, on, or after the birth of the child by the person who gave birth and by the other person who intends to be a parent. Alternatively, a court may find consent to parent if a person “openly held out the child as the individual’s child” for the first two years of the child’s life and lived in the same household.

The need to better protect families formed via assisted reproduction is evident from a 2021 case involving LaNesha Matthews and Kyresha LeFever, a two-mom couple who formed their family via reciprocal IVF (RIVF). After the couple broke up, a trial court ruled that Matthews, the gestational mother, was effectively a surrogate, not a parent. An appeals court unanimously overturned the ruling, however, and Judge Elizabeth L. Gleicher, in a separate opinion, questioned whether current laws, “are robust enough in their current form to provide equitable outcomes to such families,” noting, “We anticipate that the Legislature will need to modernize the law to keep pace with technological advancements and appropriately balance various public policy concerns.”

The MFA and many others, including lead MFPA sponsor Rep. Samantha Steckloff (D-Farmington Hills), have been working to make exactly this happen.

Acknowledgments of Parentage

An acknowledgment of parentage (in some states a “voluntary acknowledgment of parentage”), is a simple, free form to establish parentage that may be completed at the hospital immediately after a child’s birth (or later). All states are required by federal law to offer an acknowledgment process, but they have traditionally been used when a woman gives birth and a man to whom she is not married attests (with her permission) to being the parent of the child. If Gov. Whitmer signs the MFPA into law, Michigan will be the 12th state to explicitly allow LGBTQ parents to access VAPs.

A VAP is the equivalent of a court decree of parentage and is intended to receive full faith and credit in all states, although VAPs have not yet been tested in courts for LGBTQ parents. (Visit GLAD’s FAQ: Voluntary Acknowledgment of Parentage for an up-to-date listing of states and links to their specific requirements.)

The Way Forward

With the signing of the law, Michigan would become one of a small but growing number of states that provides clear and equitable paths to parentage for all children. (See this map from the Movement Advancement Project for state-by-state details.) Polly Crozier, director of family advocacy at GLBTQ Legal Advocates & Defenders (GLAD), explained in a statement that the MFPA “will make it possible for more people to fulfill their dreams of creating a family, provide long overdue protections for Michigan’s LGBTQ+ families, and ensure all children have access to the security of a legal tie to their parents, no matter how their families are formed.”

She added, “At a time when reproductive freedom and legal recognition for LGBTQ+ parents and families are being threatened and restricted around the country, this win in Michigan should inspire other states to follow suit.”

Let’s hope she’s right. The Massachusetts Parentage Act, a bill similar to Michigan’s Family Protection Act, is pending in the Bay State’s legislature with bipartisan support. Massachusetts, which led the nation in marriage equality, is now the only New England state that has not comprehensively reformed its parentage laws to account for the diversity of family forms today. The powerful testimony of many families last November shows why such reform is urgently needed.