Michigan Dems pass surrogacy and IVF protection bills amid right-wing attacks

By Kyle Kaminski

March 20, 2024

The Michigan Family Protection Act would create new legal protections for parents who choose to use fertility treatments, surrogacy, or any other form of assisted reproduction—including in-vitro fertilization treatment. 

MICHIGAN—State legislation set to be signed into law by Gov. Gretchen Whitmer aims to protect access to fertility care, repeal restrictions on surrogacy, and create new legal safeguards for Michiganders who choose to use assisted fertility technology like in-vitro fertilization (IVF).

The nine bills (collectively known as the Michigan Family Protection Act) were approved by the House last year, the Senate this week, and are now en route to Whitmer’s desk to be signed into law. Whitmer has already indicated that she will sign the “common-sense package of bills.”

“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,” she said last week. “I will continue working closely with my partners in the Legislature to make our state the best place to start, raise, and grow your family.” 

In a statement, Whitmer said the legislation will make it much easier for Michiganders to start a family, save them time and money on government paperwork, and ensure all parents—including LGBTQ families—are treated equally under state law. Lawmakers also said the bills will help ensure Michiganders maintain access to IVF treatment amid attacks from conservatives. 

Here’s the deal:

Republican-led efforts to restrict abortion across the country resulted in a controversial ruling at the Alabama Supreme Court last month that found frozen embryos in test tubes are legally considered people, and that those who destroy them can be held liable for wrongful death.

By design, IVF produces multiple embryos in each round to increase the chances that one of them will eventually become viable. Sometimes one does. Sometimes none become viable. Since multiple embryos are produced in the process, the extras are either either frozen for future use, donated, or, if the couple doesn’t want to have any more children, destroyed. 

In response to the ruling, several clinics in Alabama stopped providing IVF services out of fear they could face prosecution for lost or discarded embryos. The state’s government has since passed a law protecting IVF patients and providers from criminal liability, though they did not address the underlying issue of whether embryos were considered people. The court ruling only applied in Alabama, but the decision has left many across the country—including in Michigan— fearing that fertility treatments could be the next target of the anti-abortion movement.

What’s going on in Michigan?

In Michigan, the right to reproductive freedom—and the “right to make and effectuate decisions about all matters related to pregnancy”—has been enshrined in the state Constitution after voters overwhelmingly passed Proposal 3 in 2022. That includes access to IVF treatment.

Since then, however, the right-wing attacks on reproductive freedom have only continued. 

There have been bills introduced in over a dozen states—and at the federal level—that would effectively have the same IVF-banning consequences as the Alabama ruling.

This year, Right to Life Michigan filed a lawsuit challenging Proposal 3, threatening access to IVF, prenatal care, and other forms of reproductive health care. Another pending case in the US Supreme Court could restrict access to medication abortion nationwide—including in Michigan, where five Republican lawmakers signed a brief urging the court to restrict access to the drug.

Reports also show that ex-President Donald Trump has detailed plans to pursue a nationwide abortion ban if elected to another term. As a result, reproductive rights advocates are warning that Michiganders shouldn’t get too complacent about their new constitutional rights to abortion—because reproductive freedoms will still be decided in this year’s presidential election.

Meanwhile, Democrats in the state Legislature are taking proactive steps to protect access to IVF and ensure equal rights for Michigan parents who use assisted fertility care or surrogacy.

What’s in the bills?

Michigan is the only state in the nation that criminalizes paid surrogacy contracts, where a woman agrees to be impregnated through artificial insemination (or another woman’s fertilized egg) and give birth to a child who will be raised by others, often in exchange for money.

The Michigan Family Protection Act would formally repeal that ban in Michigan, as well as amend state law to establish clear legal rights of parents, surrogates, and children who are born using surrogacy and other forms of assisted reproductive technology—including IVF treatment.

In order to have a contract under the bills, surrogates must have previously given birth and be 21 or older, have a medical and mental health consultation, and have access to independent legal representation of their choice paid for by the intended parents, Michigan Advance reports.

Lawmakers said the bills are designed to help ensure Michiganders who serve as surrogates are fairly compensated, legally represented, and cared for during the course of a pregnancy.

“This package of bills is about protecting children,” state Rep. Samantha Steckloff (D-Farmington Hills) said during a recent roundtable discussion in East Lansing

Other bills in the package reportedly aim to amend state law to protect the rights of kids who are born through surrogacy—specifically dealing with inheritances and access to birth certificates and ensuring that children born through IVF or surrogacy are treated equally under the law.

Whitmer said the legislation would also tweak an outdated state law that requires LGBTQ families to go through a “costly and invasive process” to legitimize their legal rights as parents. 

The legislation was sponsored by Steckloff and eight other Democratic lawmakers: state Reps. Christine Morse (D-Texas Township); Kelly Breen (D-Novi); Jason Hoskins (D-Southfield); Jennifer Conlin (D-Ann Arbor Township); Jason Morgan (D-Ann Arbor); Penelope Tsernoglou (D-East Lansing); Laurie Pohutsky (D-Livonia); and Amos O’Neal (D-Saginaw).

All nine bills passed despite opposition from Republicans in both the state House and Senate.

READ MORE: Michigan Dems introduce federal bill to protect IVF after Alabama ruling

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Follow Political Correspondent Kyle Kaminski here.

Author

  • Kyle Kaminski

    Kyle Kaminski is an award-winning investigative journalist with more than a decade of experience covering news across Michigan. Prior to joining The ‘Gander, Kyle worked as the managing editor at City Pulse in Lansing and as a reporter for the Traverse City Record-Eagle.

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