State Laws and Legislation

Michigan Surrogacy Law

Summary: All surrogacy agreements, regardless of the sexual orientation of the individuals involved, are prohibited by law in Michigan.

Explanation: Michigan has very strict laws prohibiting surrogacy contracts. State law not only holds these agreements unenforceable, but also imposes fines (up to $50,000.00) and jail time (up to five years) on anyone who enters into such a contract.

Michigan courts have upheld the validity of this law. In one 1981 case, individuals involved in compensated surrogacy agreements challenged the constitutionality of statutes barring the exchange of money or other consideration in connection with adoption and related proceedings. In a very short opinion, a Michigan Court of Appeals concluded that state regulation of adoption in this manner does not infringe on individuals’ federal constitutional due process right to procreation.

In the 1992 case of Doe v. Att’y Gen., several would-be participants in surrogacy arrangements challenged the law, arguing that the state had no compelling interest in prohibiting surrogacy. A Michigan Court of Appeals disagreed and found three compelling state interests: (1) preventing children from becoming commodities; (2) serving the best interests of children; and (3) preventing the exploitation of women. Further clarifying the surrogacy statute, the Court noted that any agreement involving conception and relinquishment of parental rights by the surrogate is void.

However, Michigan surrogacy case law is not entirely negative, as demonstrated by the 1985 case of Syrkowski v Appleyard. This case involved a surrogate mother who was artificially inseminated by a man who was not her husband. The Michigan Supreme Court held that under the state’s Paternity Act, the biological father was allowed to petition for an order declaring his paternity and adding his name to the child’s birth certificate. The Court rejected the argument by the state’s Attorney General that such petitions should only be allowed when the child(ren) in question was/were born out of wedlock.

Citations: MICH. COMP. LAWS §722.851-861 (2009); Doe v. Att’y Gen., 487 N.W.2d 484 (Mich. Ct. App. 1992); Doe v. Kelley, 307 N.W.2d 438 (Mich. Ct. App. 1981); Syrkowski v Appleyard, 362 N.W.2d 211 (Mich. 1985).

Updated: Tue, September 08, 2009 - 11:00:35