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GESTATIONAL SURROGACY IN MICHIGAN

The Michigan Surrogate Parenting Act MCL Section 722.851 makes all surrogacy contracts, agreements, or arrangements “void and unenforceable as contrary to public policy.” In addition, surrogacy contracts for compensation are subject to criminal penalties.

PRE-BIRTH PARENTAGE ORDERS

Do courts grant pre-birth parentage orders?  Not in cases involving compensation or living expenses.  Those contracts are void, unenforceable and criminal.  The only cases in which courts will grant pre-birth orders are in compassionate surrogacy cases.
 
In compassionate surrogacy cases, courts will grant a pre-birth parentage order only upon the filing of a consent motion, and only if: at least one of the Intended Parents has a genetic tie to the child, the Intended Parents are married, and the Intended Parents and the Gestational Carrier each have independent legal representation.
 
Can both Intended Parents be declared the legal parents in a pre-birth order in a compassionate surrogacy case if at least one parent is genetically related to the child?

  • Married heterosexual couple using own egg and own sperm:  Yes
  • Married heterosexual couple using egg donor or sperm donor:  Yes
  • Unmarried heterosexual couple using own egg and own sperm: No
  • Unmarried heterosexual couple using egg donor or sperm donor:  No
  • Single parent using own egg/sperm:  Yes
  • Same-sex couple using egg donor or sperm donor:  No

Can both Intended Parents be declared the legal parents in a pre-birth order in a compassionate surrogacy case if no parent is genetically related to the child?

  • Married heterosexual couple:  No
  • Unmarried heterosexual couple:  No
  • Single parent:  No
  • Same-sex couple:  No

 
What are the bases for venue?  Location of the Gestational Carrier’s residence
 
Do results vary by county?
  No 
 
Is a hearing required to obtain a pre-birth order? Depends on the judge. 
 
Is a pre-birth order possible in Michigan based on a Gestational Carrier’s plan to deliver in Michigan, if no party lives in Michigan?  No 
 
Will Michigan Vital Records honor a pre-birth order from another state?  Yes, but not if the order would result in a violation of the Michigan statute.  
 
What is the typical time frame to obtain a birth certificate after delivery?  It can vary greatly from about a week to a few months depending on the issuing county.

Same-Sex Couples

How are same-sex parents named on the final birth certificate?  Parent and Parent or Mother and Father 
 
Can an international same-sex male couple obtain an initial birth certificate naming the biological father and Gestational Carrier?
  Yes 
 
Can they subsequently obtain a birth certificate naming only the biological father or both fathers, with no mention of the Gestational Carrier?
  Yes, if an adoption order is issued in another state or country.   
 
Can the non-biological parent obtain a second parent adoption based solely on the fact that the child was born in Michigan (i.e., neither of the Intended Parents lives in Michigan)?  No, Michigan does not allow unmarried couples to adopt (same-sex or heterosexual), and Michigan does not currently recognize same-sex marriages, although this issue is being challenged in court.
 
If no, will Michigan Vital Records honor a second parent adoption order from another state and add the second parent to the birth certificate?  Yes

SECOND PARENT & STEPPARENT ADOPTIONS FOR OHIO RESIDENTS

Note: This situation typically arises if the child is born outside of the state.  The parents then return to MICHIGAN to obtain a second parent adoption or stepparent adoption in MICHIGAN.

Will courts in Michigan grant second parent adoptions or stepparent adoptions to heterosexual couples living in Michigan?  Yes
Does the couple need to be married?
  Yes, Michigan does not allow unmarried couples to adopt, whether heterosexual or same-sex
 
Will courts in Michigan grant second parent or stepparent adoptions to same-sex couples living in Michigan? No. Michigan does not currently recognize same-sex marriages, and only married couples can adopt in Michigan.

EGG AND SPERM DONATION

Is there a statute or published case law that addresses the rights of a donor over the resulting eggs, sperm, embryo or child?  Yes, the Michigan assisted reproduction statute, MCL333.2824(6), is gender neutral, though limited to a married husband and wife.  It provides, “A child conceived by a married woman with consent of her husband following the utilization of assisted reproductive technology is considered to be the legitimate child of the husband and wife.”

TRADITIONAL SURROGACY IN MICHIGAN

The Michigan Surrogate Parenting Act does not distinguish between Gestational Surrogacy and Traditional Surrogacy.

State law information provided by the following attorneys practicing Reproductive Law in this state:
 
Herb Brail
hbrail@brail-law.com
(313) 278-8779

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