Alex Kamer considers himself lucky – he did not have to fight a legal battle for parental rights for his biological children.
Kamer and her husband, Allan Kamer, raised their family through surrogates; their youngest son was born in June. But the couple lives in Michigan, where a 1988 law prohibits the use of surrogacy contracts and compensates for surrogacy. This created uncertainty about what might happen after the baby was born last year.
Michigan was the last state in the country to have such a law on its books, and for more than 30 years, violators could face prison terms in extreme cases. In the state, couples seeking to use surrogates could not pay them and had to seek a pre-birth order from a judge to secure parental rights to their children. However, individual judges could choose not to approve the order, and if not granted in time, families faced a lengthy legal maze or even a long process to adopt their biological children.
“Surrogacy is hard — it’s expensive, it’s an emotional roller coaster, it takes all your energy for the years you’ve worked for it,” Kamer, 32, said. “And in Michigan, that added the stress of not knowing if our names would be on her birth certificate for the first seven or eight months of the pregnancy.”
The state’s ban ended Monday after Gov. Gretchen Whitmer signed a package of bills that lifted the ban on surrogacy contracts while strengthening protections for surrogate mothers, access to in vitro fertilization and protections for LGBTQ+ parents.
The Democratic-backed package draws the state further into the national debate over government regulation of reproductive health that goes beyond abortion. Heading into the 2024 presidential election, which could hinge on Michigan, both parties know that access to reproductive health care will remain a key motivator for voters. And more and more advocates are pointing to the overlap between abortion regulations and access to fertility treatments.
For Michigan Fertility Alliance founder Stephanie Jones, the state’s new laws are the culmination of years of hard work. In 2018, while in intensive care recovering from an ectopic pregnancy that almost took her life, she realized she would need a surrogate if she wanted to have a biological child. Then he learned the difficulties of exercising that option in Michigan.
“Never in my wildest dreams did I think I’d live in the only state in the country with a criminal ban on surrogacy,” Jones, 41, said days before the Michigan law was struck from the books.
To avoid the state’s surrogacy restrictions — adding to an already desperate situation Jones described as “trauma and heartache, trauma and heartache” — she and her husband had a second child. Surrogacy is a fairly common practice for those out of state who can afford it.
In Kamer’s case, a congenital heart defect made it dangerous for her to conceive. The couple’s eldest son was also born through a surrogate in another state. Later, friends and surrogate Lea Zeintek managed to get an antenatal order before she gave birth to her youngest son. This allowed the Kamers to leave the hospital in Michigan with their children in their arms, despite the fact that the newborn’s name was not on the hospital bracelet.
“Anything could have happened,” Kamer said. “We were lucky that it went crazy. It shouldn’t be like that.”
Michigan’s new set of laws passed largely along party lines, with most Republicans voting against it. Some critics said the change commercialized surrogacy, while other critics disputed the idea that surrogacy could make it easier for same-sex couples to become parents.
Republican state Sen. Thomas Albert said during the discussion of the package it was fraught not only with practical problems, but also with a revolutionary departure from the natural order.
Explaining his vote against the bills, he added that if they had focused on husbands and wives who were naturally unable to have children, “it would have been a completely different discussion.” But Albert said he feared it would be “a very small minority of cases where commercial surrogacy would be used”.
The anti-abortion nonprofit group Right to Life Michigan also opposed the package in testimony to state lawmakers “Paying for services rendered turns the generous act of being a selfless surrogate into a money-making proposition, which in turn creates a market that can and does exploit poor and vulnerable women.”
Michigan’s 1988 ban on surrogacy contracts did so in part A response to the so-called “Baby M” lawsuit. At the time, the state was home to the world’s largest surrogacy clinic – run by the lawyer who drafted the contract that gave rise to the high-profile lawsuit.
In this sense, the original law and its repeal are somewhat narrow in scope. But Whitmer has been a central player in the national conversation about reproductive rights for years. In his bid for re-election in 2022, he doubled down on his pro-abortion message and the US Supreme Court in Roe vs. After Wade dropped his lawsuit, he quickly moved to protect abortion in the state.
Michigan’s new legislation can be seen as a step to strengthen the other side of reproductive rights.
Jones said he sees policies governing access to abortion and fertility treatments as intertwined.
“Reproductive freedoms include reproductive health. It’s a choice of when not to have children and when not to have children,” she said, adding that her path to parenthood included both fertility treatments and emergency abortions to save her life.
“I’m a classic example of total care,” Jones said.
That intersection was also highlighted in Alabama when lawmakers moved to protect IVF access in February. a controversial court decision that considers children as embryos.
Kamer said she sees her experience with surrogacy as part of a larger national discussion.
“I’m no expert, but it definitely falls into the category of ‘women being able to make choices about their bodies and their families,'” she said. “And I think a small part of it is now being made in Michigan.”