In this series we are looking at what Michigan law has to say about surrogacy, and how this could affect same-sex couples looking to become parents through surrogacy. In the first and second articles we’ve discussed the different types of surrogacy available, and what Michigan law allows. Moving forward, we’re going to wrap this up with look at which parents are legally recognized by the state in a surrogacy situation, and whether or not adoption is an option for same sex couples in Michigan.
Which parents are legally recognized as the parents of the surrogate child in Michigan?
The question of whether or not both intended parents can be declared as the legal parents in a compassionate surrogacy case when only one parent is genetically related to the child is a complex one, and depends on a lot of factors. Here we provide a basic breakdown of exactly which parents Michigan will recognize in each possible scenario:
A married heterosexual couple using their own egg and sperm: Yes
A married heterosexual couple using an egg donor or a sperm donor: Yes
An unmarried heterosexual couple using their own egg and sperm: No
An unmarried heterosexual couple using an egg or sperm donor: No
A single parent using their own egg or sperm: Yes
A same-sex couple using an egg or sperm donor: No
As you can see, for same-sex couples, the trouble lies in the fact that the law does not recognize both parents as legal parents. For a lesbian couple, the woman who is inseminated via a sperm donor and carries the child to term, would be the genetic mother of the child and therefore would be recognized as the child’s legal mother. But her partner, who is not genetically related to the child, would not be legally recognized as a parent of the child in question.
For two gay men hoping to be fathers as a couple, the child would be recognized as the legal child of whichever one of them signed the birth certificate as the father, even if he wasn’t the sperm donor. However, the other intended father would not be legally recognized as the legal father of the child in question.
Does Michigan allow same sex parents to adopt children?
Yes, technically, a same sex couple can adopt a child in Michigan, but this is also a difficult issue, as Michigan currently has discriminatory laws that make adoption by gay parents that much harder. In 2015, several bills were signed into law that made it legal for a private adoption agency to refuse services to same-sex couples.
Although the bills don’t outright mention LGBT parents, the wording of the law states that an agency can deny a couple if their lifestyle conflicts with the agency’s “sincerely held religious beliefs.” In other words, if the agency happens to be affiliated with a conservative church that eschews same-sex marriage, they reserve the right to deny adoption services to a same-sex couple.
However, for a same-sex couple that had a child via surrogacy, where only one of the prospective parents is genetically related to the child and thus recognised as a legal parent, Michigan courts do grant second-parent adoptions by same-sex couples.
We hope this series was helpful to you, and answered some of your surrogacy related questions. But as with many family law subjects, surrogacy is a complex matter, and same sex couples would be advised to meet with a family law attorney before embarking on a surrogacy or adoption plan, to make sure that they know all of the obstacles they may encounter, and how to overcome them legally.