Forward Thinking Family Law Since 1994

Estate Planning for Surrogacy in Michigan

Family Estate Planning document

The laws related to surrogacy in Michigan are restrictive and confusing, but families across the state are still working with volunteer surrogates to overcome reproductive difficulties or as gay couples looking to start a family. If you are acting as a surrogate or are the intended parents of the child, there are some estate planning considerations you may want to address.

Michigan Surrogacy Laws Make Family Planning Difficult

Michigan has some of the most restrictive surrogacy laws in the country. The Surrogate Parenting Act says that paying any compensation to a woman who acts as a surrogate is a crime. Even voluntary surrogacy agreements where the intended parents simply reimburse the mother for her out-of-pocket expenses are void and unenforceable under the law. There have been repeated efforts to update the law to be consistent with other states’ uniform parentage acts. However, these bills have not made it to a vote in the Michigan legislature.

Despite the difficult legal setting, families across Michigan still use surrogate parents to give birth to their children. In January 2021, one Grand Rapids family made national news after being told they would have to adopt their own biological children to get their names on the twins’ birth certificates. Gay men and families with reproductive difficulties often rely on family members or close friends to carry their children to term for them. When they do, it creates estate planning issues that need to be addressed.

How Surrogacy in Michigan Can Create Estate Planning Challenges

Michigan intestacy law (which applies whenever a person dies without a will) assumes that a person wants to leave their assets to their closest legal relatives -- usually their spouse and children. The woman who gives birth to a child and her spouse are automatically assumed to be the legal parents of that child. That means if something happens to the surrogate mother during childbirth or before she creates an estate plan, the surrogate child will likely be included as an heir to her estate, reducing or even eliminating the inheritance of the family members she intended to receive her assets.

Similarly, state law does not automatically recognize the legal parental relationship between the intended parents and the surrogate child. While the child’s biological father may be able to sign an Acknowledgement of Parentage (also called an Affidavit of Paternity) in the hospital, the child’s intended mother or non-biological father may not be able to establish a legal parental relationship without going to court. That means if the intended parents die without a will, their child will not receive any of their estate, and the child’s care may be left to the discretion of the court, or even revert back to the surrogate.

What Surrogates Need in Their Estate Plan

A gestational carrier should create or update her estate plan with the help of an estate planning attorney.  Since surrogacy agreements are illegal in Michigan, the surrogate will likely consult with her own attorney in whatever state she resides.  She should consider creating:

  • A will that explicitly disinherits the surrogate child and gives her assets to her intended heirs
  • A living will and patient advocate designation that directs how she wants to be treated if something goes wrong during pregnancy and who gets to make those decisions
  • HIPAA releases to allow the intended parents to receive medical information related to the pregnancy
  • A durable power of attorney for financial decisions, so her agent can sign or enforce any contracts entered into on her behalf, should she become incapacitated during the pregnancy.

What Intended Parents Need to Do to Protect Their Children’s Inheritance

If you and your spouse are the intended parents in a surrogacy arrangement, you will want to work closely with a legal team that can handle both your family law needs and your estate plan. Because your surrogacy agreement is not enforceable in court in the State of Michigan, you will want to coordinate with your Michigan attorney so that an adoption can be finalized as close to your child’s birth as possible. This reduces the risk of the surrogate changing her mind and trying to keep the child. It also shortens the window for when a tragic accident and missing estate plan could leave a child unprotected.

At the same time, you should update your estate plan in anticipation of the birth. Remember that a will allows you to leave your assets to anyone, even if you aren’t legally related. So you can include the surrogate-carried child in your estate plan even before the adoption is finalized. Intended parents should make sure their estate plan:

  • Includes the child as an intended heir of both parents’ assets
  • Names the non-biological parent the first intended guardian of the child if something happens to the legal father of the child
  • Names an alternative guardian to care for the child if both parents are dead or incapacitated
  • Places money in a trust or life insurance policy to provide for the reimbursement of expenses included in the surrogacy agreement if something happens to you during the pregnancy
  • Creates and funds a trust for the care and well-being of your child
  • Establishes a medical and financial power of attorney document for your partner or spouse to be able to act as your agent if you become incapacitated during the surrogate’s preganancy.

It will take time for Michigan law to catch up with the advances in reproductive technology that are giving couples the ability to have children when they would not have been able to before. If you are considering surrogacy or an alternative reproductive strategy, be certain to speak with an experienced family and estate planning attorney before you attempt conception, to comply with the law and make the right preparations for everyone in your family.

At NSSSB, we work with families of all kinds. Our Southeast Michigan family law attorneys and estate planning lawyers are happy to explain Michigan’s surrogacy, adoption, and estate planning laws, and help you create a family plan that takes care of everyone involved. Click here to schedule a consultation with one of our experienced attorneys.

Categories: Estate Planning