Michigan Democrat Gov. Gretchen Whitmer Lifts Ban on Compensated Surrogacy

Democrat Michigan Gov. Gretchen Whitmer signed bills on Monday repealing the state’s ban on compensated surrogacy.

The bill package Whitmer signed, House Bills 5207-5215, is called the Michigan Family Protection Act by supporters, and repeals the ban on renting wombs that has been in place in the state since 1988. The package also boosts protections for in vitro fertilization (IVF) in the wake of the Alabama Supreme Court’s decision classifying frozen embryos as unborn babies under state law.

“[This] is a package of common sense, long overdue changes to remove criminal prohibitions on surrogacy, to protect families formed by IVF (in vitro fertilization) and to ensure LGBTQ+ parents are treated equally,” Whitmer said at bill-signing event in Royal Oak.

“Our outdated law prescribed up to a year of jail time and a $10,000 fine for paid surrogacies,” she added.

Surrogacy is when a woman “carries and gives birth to a baby for another person or couple,” according to the Cleveland Clinic. There are two kinds of surrogacy: genetic surrogacy, which is when a woman agrees to be a surrogate using her own eggs, usually through a process like artificial insemination; and gestational surrogacy, which is when a woman becomes pregnant through assisted reproduction — typically in vitro fertilization (IVF) — using eggs that are not her own.

“Parental surrogacy has been taking place in Michigan in the years since the ban on compensated surrogacy agreements was put in place, but parents and surrogates said during committee testimony on the bills the practice was difficult, forcing parents to go through lengthy adoption processes for their own biological children,” The Detroit Free Press noted. 

Michigan is reportedly the last state in the United States to decriminalize surrogacy, according to the American Society of Reproductive Medicine.

Democrat Rep. Samantha Steckloff, the main sponsor of the bill, said its main aim is to “create a clear, legal link between parents and the children born in assisted reproduction.”

“Whether using surrogacy or IVF, ensuring that a legal parent-child relationship exists will give children more sense of belonging and upbringing and eliminate any possible confusion around parentage and prevent bad actors from making undue claims,” Steckloff said.

Senate Republicans tried to introduce amendments to keep criminal penalties for entering a surrogacy agreement with a minor or developmentally disabled individual, such as were in effect under the previous law, according to the Free Press. The final version of the bill does require surrogates to be at least 21 years old, to have had one child previously, and to complete consultations with medical and mental health professionals, as well as have independent legal representation. 

Surrogacy has made headlines in the recent past for its ties to abortion, with horror stories of parents allegedly pressuring surrogates to abort the baby or babies for various reasons (see here, here, and here.)

The Michigan bill states: “Specific performance is not a remedy available for breach by a surrogate of a provision in the agreement that the surrogate be impregnated, terminate a pregnancy, or submit to medical procedures,” indicating a surrogate could not be forced to have an abortion by parents if the surrogacy contract is breached. However, the bill does not make any other mention of abortion, leaving guidance on the subject rather vague. 

The bills also did not mention anything about disqualifying intended parents with criminal records, including criminal records involving children. For example, a Chicago area veterinarian was arrested last week in a sting operation where he was caught allegedly detailing plans to sexually assault a surrogate baby he was expecting in March. 

However, surrogacy agencies may require background checks of intended parents, according to Surrogacy.com, a surrogacy online resource.

Commercialized surrogacy is different than altruistic surrogacy — where someone is not compensated for becoming a surrogate and often has a closer relationship with the family — and can draw women who are economically vulnerable. Women who are compensated for surrogacy can make between $50,000 to $110,000 from a someone or a couple seeking a child, according to the site.

The National Organization for Women, a notably pro-abortion group, argues that commercialized surrogacy — where women are paid to carry babies for others — “relies on the commodification of women’s bodies.”

“History has shown us that the buying, selling and renting of their bodies does great harm to women,” the group said in 2019.

The group continued:

Altruistic surrogacy agreements rely fully on consent. Women choose to become surrogates solely on the condition that they want to help someone build their family and they are not forced to continue with surrogacy plans in order to make a living. But commercial surrogacy changes the reality of consent. Once for-profit agencies and large sums of money are involved, women may be drawn into surrogacy due to financial desperation, a choice made when there are no other choices.

Commercialized surrogacy industries in other countries have a reputation for coercing poor and vulnerable women into contracts. Even when protections exist, they are incredibly difficult to enforce. A steady supply of women’s bodies is needed in order to meet the demands of rich couples who can afford to pay extravagant fees to agencies.

The bills did not receive two-thirds support in the Senate, so the new surrogacy law will not take effect until 90 days after the state legislature concludes its session this year. 

Katherine Hamilton is a political reporter for Breitbart News. You can follow her on X @thekat_hamilton.