Drafting Gestational Surrogacy Agreements Under Michigan's New Family Protection Act

For decades, Michigan was known as one of the most restrictive states in the country regarding surrogacy. With the passage of the 2024 Michigan Assisted Reproduction and Surrogacy Parentage Act, part of the broader Family Protection Act, the landscape has completely transformed. It is now legal to enter into compensated gestational surrogacy agreements, providing a clear and secure path to parenthood for many families.

However, the new laws come with strict regulatory requirements to protect both the surrogate and the intended parents. A simple handshake or a boilerplate contract downloaded from the internet will not hold up in court. Whether you live in Detroit, Grand Rapids, or Ann Arbor, your surrogacy agreement must meet very specific statutory guidelines to be recognized by a judge. Here is how to navigate the process properly.

Step-by-Step Process in Michigan

Whether you are filing at the Wayne County Circuit Court, Family Division, Detroit or the Kent County Circuit Court, Family Division, Grand Rapids, the legal process of finalizing a surrogacy arrangement follows a similar structure across the state.

Step 1: Secure Independent Legal Representation

Under Mich. Comp. Laws § 722.1901, a gestational surrogacy agreement is only valid if the intended parents and the surrogate (and her spouse, if applicable) are represented by separate, independent attorneys licensed in Michigan. This ensures that no single lawyer has a conflict of interest and that all parties fully understand the medical and financial risks involved.

Step 2: Mandatory Medical and Mental Health Screenings

Before any contracts are signed, the law requires that the gestational surrogate and the intended parents undergo comprehensive medical and mental health evaluations by licensed professionals. These screenings confirm that the surrogate is physically capable of carrying the pregnancy and that all parties are psychologically prepared for the journey.

Step 3: Drafting and Signing the Agreement

Your attorney will draft a comprehensive contract outlining compensation, medical decision-making (such as selective reduction or termination), health insurance responsibilities, and parentage expectations. The agreement must be signed by all parties and notarized before any embryo transfer or medical procedure begins.

Step 4: Establishing Pre-Birth Parentage

During the second or third trimester, your attorney will file a petition to establish parentage at the local circuit court, such as the Oakland County Circuit Court, Family Division, Pontiac. You will typically file a state-approved form, like Form Unnumbered, Michigan, Circuit Court Family Division, Petition for Order of Parentage. The judge will issue a Pre-Birth Order (PBO), which instructs the hospital to place the intended parents' names on the original birth certificate.

Rules for International Intended Parents

Michigan's legal framework allows international intended parents to utilize surrogates within the state. However, the drafting process must account for immigration laws and citizenship requirements of the parents' home country. Your attorney will work closely with international family lawyers to ensure the Michigan court order (PBO) is recognized abroad, preventing the child from facing statelessness or complex visa issues upon returning home.

Compensation vs. Reimbursement Limits in MI

Before the Family Protection Act, compensated surrogacy was criminalized in Michigan. Now, intended parents can legally pay a surrogate base compensation beyond mere medical expenses. While Michigan law does not strictly cap the compensation amount, it must be reasonable and negotiated in good faith. Contracts typically break down base compensation (paid out in milestones) versus reimbursements for lost wages, maternity clothing, travel expenses, and specialized insurance premiums.

Requirements for LGBTQ+ Couples Using Surrogates

The updated laws are intentionally drafted to be gender-neutral and inclusive, solidifying protections for LGBTQ+ couples. Precedents like Pueblo v. Haas, 511 Mich. 345 (MI Supreme Court 2023) paved the way by recognizing equitable parentage rights. Now, under the new statutes, both partners in a same-sex marriage can be recognized as legal parents from the moment of birth, regardless of which partner provided the genetic material, provided the surrogacy agreement meets all statutory requirements.

How Much Does it Cost in Michigan?

Surrogacy is a significant financial investment. The legal costs represent just one portion of the overall budget, but they are crucial for securing your parental rights.

How Long Does the Process Take?

Drafting the agreement usually takes 3 to 6 weeks, depending on how quickly the medical and psychological screenings are completed. The legal process of obtaining a Pre-Birth Order typically happens between the 16th and 24th week of pregnancy. Overall, from matching with a surrogate to bringing your baby home, the process often spans 14 to 20 months.

Frequently Asked Questions (FAQ)