September 5, 2018, Introduced by Senators WARREN, ANANICH, CONYERS and YOUNG and referred to the Committee on Families, Seniors and Human Services.
A bill to establish gestational surrogate parentage contracts;
to allow gestational surrogate parentage contracts for
compensation; to provide for a child conceived, gestated, and born
according to a gestational surrogate parentage contract; to
prescribe the duties of certain state departments; to provide for
penalties and remedies; and to repeal acts and parts of acts.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 1. This act shall be known and may be cited as the
"gestational surrogate parentage act".
Sec. 3. As used in this act:
(a) "Compensation" means a payment of any valuable
consideration for service in excess of expense.
(b) "Developmental disability" means that term as defined in
section 100a of the mental health code, 1974 PA 258, MCL 330.1100a.
(c) "Expense" includes, but is not limited to, medical, legal,
and other professional and incidental cost or fee related to the
surrogate gestation or the gestational surrogate parentage
contract.
(d) "Gestational carrier" means, in a surrogate gestation, the
female in whom an embryo, that is not procreated from her own egg,
is transferred into her uterus by a physician.
(e) "Gestational surrogate parentage contract" or "contract"
means a contract, agreement, or arrangement, with or without
compensation, in which a female does both of the following:
(i) Agrees to gestate a child conceived through assisted
reproduction, by the transfer of an embryo that may or may not be
genetically related to the intended parent, but is not procreated
by the gestational carrier's own egg.
(ii) Agrees that the intended parent is the legal parent and
agrees that the intended parent assumes full legal and physical
custody of the resulting child by operation of law.
(f) "Intellectually disabled" means intellectual disability as
that term is defined in section 100b of the mental health code,
1974 PA 258, MCL 330.1100b.
(g) "Intended parent" means an individual who intends to
become the legal parent and assumes full legal and physical custody
by operation of law of the child that results from a gestational
surrogate parentage contract.
(h) "Mental health professional" means that term as defined in
section 100b of the mental health code, 1974 PA 258, MCL 330.1100b.
(i) "Mental illness" means that term as defined in section 400
of the mental health code, 1974 PA 258, MCL 330.1400.
(j) "Physician" means an individual licensed under part 170 or
175 of the public health code, 1978 PA 368, MCL 333.17001 to
333.17084 and 333.17501 to 333.17556, to engage in the practice of
medicine or osteopathic medicine and surgery.
(k) "Surrogate gestation" means the transfer, by a physician,
into the female's uterus, of an embryo that was not procreated from
the female's own egg.
(l) "Transfer" means placement of an embryo inside the uterus
of a gestational carrier by a physician.
Sec. 5. (1) In order to enter into a gestational surrogate
parentage contract, a gestational carrier must meet all of the
following requirements:
(a) Be 21 years of age or older.
(b) Have previously given birth to at least 1 child.
(c) Have completed a medical evaluation by a physician.
(d) Have completed a mental health evaluation by a mental
health professional.
(e) Have consulted with independent legal counsel about the
terms of the contract.
(2) In order to enter into a gestational surrogate parentage
contract, an intended parent must meet both of the following
requirements:
(a) Have completed a mental health evaluation by a mental
health professional.
(b) Have consulted with independent legal counsel about the
terms of the contract.
Sec. 7. (1) In addition to the requirements under section 5
for a gestational carrier and an intended parent, the gestational
surrogate parentage contract must meet all of the following
requirements:
(a) Be in writing and signed by all parties to the contract.
(b) Specify that all evaluations, medical procedures, and
treatment must be conducted in accordance with the guidelines
published by the American Society for Reproductive Medicine or the
American Congress of Obstetricians and Gynecologists, or a
successor organization.
(c) Specify that a party to a gestational surrogate parentage
contract may withdraw consent to an evaluation, medical procedure,
or treatment and may terminate the contract no later than 24 hours
before an embryo transfer or implantation by giving written notice
of the termination to all parties to the contract.
(d) Specify that a gestational carrier does not have any
parental or custodial rights to the resulting child and that legal
and physical custody are automatically vested in the intended
parent by operation of the law.
(e) Specify that the intended parent has legal and physical
custody of and assumes responsibility for the resulting child
immediately upon birth.
(f) Specify that, if the gestational surrogate parentage
contract provides for payment of compensation to the gestational
carrier, the compensation must be placed in an escrow account with
an independent escrow agent before the gestational carrier begins
any medical procedure or treatment related to the contract.
(2) At least 1 of the parties to the gestational surrogate
parentage contract must be a resident of this state.
(3) The gestational surrogate parentage contract must
expressly provide that if the gestational carrier is married, her
spouse must acknowledge and agree to abide by the obligations
imposed on the gestational carrier by the terms of the contract;
that the spouse of the gestational carrier has no claim to parental
rights or legal or physical custody of a resulting child; and that
the spouse of the gestational carrier must acknowledge the
exclusive parental rights of the intended parent of the resulting
child.
(4) A marriage of the gestational carrier subsequent to
executing the gestational surrogate parentage contract does not
affect the validity of that contract or the exclusive parental
rights of the intended parent.
Sec. 9. (1) If the attorneys representing both the gestational
carrier and the intended parent certify that the parties entered
into a gestational surrogate parentage contract that meets the
requirements of sections 5 and 7, that contract is valid and
enforceable under the provisions of this act.
(2) The certification required of the attorneys under
subsection (1) shall be filed on forms prescribed by the department
of health and human services.
(3) A certification form required under this section is
sufficient documentation for the state registrar to issue a birth
certificate naming the intended parent as the parent of the
resulting child.
(4) If the provisions of sections 5 and 7 are met, a person
may enter into, arrange, procure, or otherwise assist in the
formation of a gestational surrogate parentage contract, with or
without compensation or payment of expenses.
Sec. 11. If a gestational surrogate parentage contract
satisfies the requirements of this act, all of the following apply:
(a) The gestational surrogate and her spouse, if any, by
operation of law, do not have any parental or custodial rights to
the resulting child.
(b) The intended parent, by operation of law, is the parent of
the resulting child. A resulting child is the child of the intended
parent. Parental rights and responsibilities vest exclusively in
the intended parent. The intended parent is entitled to receive a
birth certificate naming the intended parent as the parent of the
resulting child.
(c) A person who is the parent of a resulting child under this
act is obligated to support the resulting child. Breach of a
gestational surrogate parentage contract by the intended parent
does not relieve the intended parent of the obligation to support
the resulting child.
Sec. 13. (1) The family division of the circuit court has
jurisdiction if the gestational surrogate parentage contract
specifies that the parties to the contract intend for the birth of
the resulting child to take place in this state.
(2) If there is a dispute over the terms of the gestational
surrogate parentage contract or if there is noncompliance with a
term of the contract, a party to that contract may petition the
court to construe the terms of the contract or to compel the
noncompliant party to comply with the terms of the contract. There
is no specific performance remedy available for a breach of a
gestational surrogate parentage contract that requires a
gestational carrier to be impregnated.
Sec. 15. (1) A person shall not enter into, induce, arrange,
procure, or otherwise assist in the formation of a gestational
surrogate parentage contract under which a minor female or a female
diagnosed as being intellectually disabled or as having a mental
illness or developmental disability is the gestational carrier.
(2) A person other than a minor female or a female diagnosed
as being intellectually disabled or as having a mental illness or
developmental disability who enters into, induces, arranges,
procures, or otherwise assists in the formation of a contract
described in subsection (1) is guilty of a felony punishable by a
fine of not more than $50,000.00 or imprisonment for not more than
5 years, or both.
Sec. 17. (1) If a provision of this act or its application to
a person or circumstance is held invalid, the invalidity of that
provision or application does not affect other provisions or
applications of this act that can be given effect without the
invalid provision or application.
(2) The provisions of this act apply only to a gestational
surrogate parentage contract entered into after the effective date
of this act.
Enacting section 1. The surrogate parenting act, 1988 PA 199,
MCL 722.851 to 722.863, is repealed.
Enacting section 2. This act takes effect 90 days after the
date it is enacted into law.
Enacting section 3. This act does not take effect unless all
of the following bills of the 99th Legislature are enacted into
law:
(a) Senate Bill No. 1084.
(b) Senate Bill No. 1083.