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Politics Foreign Affairs Culture Fellows Program

Is Gretchen Whitmer’s Surrogacy Law Too Extreme for Voters?

Michigan is the latest state to legalize womb rental in the guise of family-friendly policy.

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Three weeks ago, Michigan became one of the most friendly places in the country for commercial baby-making. It is no surprise, under its current Democratic leadership in the legislature and executive, that Michigan chose to defend the surrogacy industry and LGBT special interest groups over women and children. It is, however, a monumental change for the state, the true ramifications of which may only be visible in years to come. Overriding a 1988 law that made any form of contractual surrogacy arrangement punishable by fine and/or jail time, the new bill permits all forms of commercial surrogacy that align with “best practices,” as defined by an unelected medical and legal establishment.  

Money and identity politics are strong medicine, perhaps the two most effective motivators for politicians today. It is no surprise that Michigan went with the flow. The surrogacy industry is projected to be worth $129 billion in the next 10 years, up from $14 billion in 2022. Legalizing it will bring the Wolverine State an influx of taxable dollars. At the same time, the LGBT lobby has moved well past its “just let us marry” phase to decrying anything less than fertile women renting out their wombs as bigotry. Every gay couple, unmarriageable single, or man in drag has a right to play house with real, live human souls; the only possible injustice is how much it costs them to pay for all the parts, or so we are told. A third incentive, no less influential, is that old blackjack of the spirit: peer pressure. In every state in the nation, with the exception of Louisiana and Nebraska, commercial surrogacy contracts are either protected by law or assumed to be legal because no statute explicitly bans them. 

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Michigan falling to the surrogacy lobby is so consequential because of commercial surrogacy, paying women to rent out their wombs. Though surrogacy advocates say women gestate children for others out of the kindness of their hearts, the industry all but disappears when women are not permitted to be paid for the use of their wombs. Thus, while Louisiana and Nebraska technically permit a few very narrow instances of unpaid surrogacy, the effect is close to a total ban. 

Prior to April, only Michigan banned surrogacy outright. The fall of this last symbolic hurdle is a harbinger of what happens when such weighty questions as the power to create children at will—and destroy them, for that matter—are left to the states to decide. As Stephanie Jones, founder of the innocuously named Michigan Fertility Alliance, put it, “We hope Michigan can serve as an example for other states where outdated laws still leave families vulnerable.”

It may be years before we see the full effect. Gestational surrogacy, in which the egg is purchased from a third party or extracted from one of the paying couples, rather than supplied by the gestating surrogate mother, is still very new. As such, those born of such arrangements are mostly too young for long-term effects to be clearly assessed. Women like Jessica Kern, however, born of “traditional” surrogacy, in which the surrogate mother is also biologically related to the child, have already spoken out about the childhood trauma they endured as a result of their confused genetic makeup and upbringing. Predictably, like adopted children, surrogate children often wrestle with feelings of confusion, disillusionment, depression, or anger over their origins.  

This hasn’t stopped surrogacy advocates from calling Michigan’s new surrogacy provisions both “family-focused” and “safe.” What is meant by “family-focused” is that anyone may now purchase and rent the materials needed to purchase a baby—no background checks, home checks, or personal references required. What is meant by “safe” is that those who want to become parents in this way are finally allowed to put their names on the birth certificate even when, in some cases, their contribution to the creation of a new human was exclusively financial. 

It is easy to see how such logic merges naturally with another fight around reproduction that is happening in countless other states this year, the fight over a right to family destruction. Where in vitro fertilization provides a positive means of control over childbearing, abortion provides the negative. Where surrogacy demands multiple human embryos be created that the fittest might survive, abortion provides a tidy disposal for the extra babies. And, of course, both abortion and surrogacy are hot button issues which politicians at the national level have thus far preferred to leave to local leaders, or direct democracy, to decide. 

The powers of creating life and destroying it are far too dangerous to be left to the whims of Big Pharma–backed medical associations and those who stand to benefit from couples using expensive, invasive procedures rather than cheaper, more natural ones.