Michigan will become the last US state to decriminalize surrogacy contracts

LANSING, Mich. (AP) — Rachael Lang and her husband share the same last name as their biological daughter, but are not listed on her birth certificate. Instead, it bears the name of a surrogate who carried their daughter due to Lang’s past 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 deemed the legal parents of their children born through surrogates.

“Whenever I fill out 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 am her parent biologically, but legally, I’m her guardian,” said Lang. “So that just makes me feel very conflicted and very sad about what I am on a piece of paper to her.”

Michigan is currently the only state in the nation where surrogacy contracts are criminally banned, according to the governor’s office. A 1988 law passed by Republicans makes it a misdemeanor or felony charge to take part in a compensated surrogacy contract.

An agreement reached between a woman who acts as a surrogate and then hands over parental rights to the child is “void and unenforceable,” under the current law. That means the intended parents must go through a judge or the adoption process to gain custody.

Parents who testified in favor of changing that law say they spent months — sometimes years — trying to adopt their child born through a surrogate.

“Decisions about if, when, and how to have a child are deeply personal. Politicians should not be dictating the terms of these private decisions that should be left to a family, their doctor, and those they love and trust,” said Michigan Gov. Gretchen Whitmer in a statement.

Whitmer, who has said she will sign the package, added that the legislation was vital as “other states make it harder for you to start a family.” The nine-bill package also includes added 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, which forced some clinics in the state to pause IVF services. Alabama’s governor has since signed legislation into law shielding doctors from potential legal liability resulting from the courts ruling.

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

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

“If I’m being honest about it, we missed out on a lot of moments with our babies,” said Tammy Myers. “Time that we should have just been focusing on the babies that arrived safely, despite being eight weeks premature. We weren’t living in the miracle. We were living in the trauma.”

After a 23-month legal fight, the Myers won the right to adopt their twins in late 2022.

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

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

Under the bills passed Tuesday, an individual can enter an agreement to become a surrogate if they are at least 21 years old, have previously given birth to a child, undergone medical and mental health exams and have independent legal representation.

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

Several Republicans spoke out against the package of bills on Tuesday prior to the Senate vote, and two Republicans sided with the Democratic majority on all nine of the bills. One Republican, Sen. Thomas Albert, said the bills could “open Pandora’s Box,” and that it “fundamentally redefines the family.”

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

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

“But now, you know, if it does go through, we would consider working with a surrogate again,” said Lang.

Joey Cappelletti, The Associated Press