HLS 13RS-845 ORIGINAL
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Regular Session, 2013
HOUSE BILL NO. 433
BY REPRESENTATIVE BADON
(On Recommendation of the Louisiana State Law Institute)
Prefiled pursuant to Article III, Section 2(A)(4)(b)(i) of the Constitution of Louisiana.
CIVIL/OBLIGATIONS: Provides relative to surrogacy contracts
AN ACT1
To amend and reenact R.S. 40:34(B)(1)(a)(viii), (h)(v), (i), and (j), to enact Chapter 1-C of2
Code Title IV of Code Book III of Title 9 of the Louisiana Revised Statutes of 1950,3
to be comprised of R.S. 9:2718 through 2720.15, and to repeal R.S. 9:2713, relative4
to surrogacy contracts; to prohibit genetic surrogacy contracts; to provide for the5
enforceability of gestational surrogacy contracts; to provide for definitions; to6
provide for the parties to a gestational surrogacy contract; to provide for contractual7
requirements; to provide for a proceeding to approve a gestational surrogacy8
contract; to provide for certain records checks of the parties; to provide for a9
pre-implantation order; to provide for matters relative to multiple attempts at in utero10
implantation; to provide for confidentiality of the proceedings; to provide for11
continuing and exclusive jurisdiction relative to the proceedings; to provide for the12
termination of a gestational surrogacy contract by notice; to provide for remedies for13
the failure to perform under a gestational surrogacy contract; to provide for the14
termination of a gestational surrogacy contract and for the effects of divorce, nullity,15
and death on a gestational surrogacy contract; to provide for the effect of a16
subsequent marriage of the gestational surrogate on a gestational surrogacy contract;17
to provide for a post-birth order; to provide for DNA testing in certain18
circumstances; to provide for time limitations and finality; to provide relative to birth19
certificates; and to provide for related matters.20 HLS 13RS-845 ORIGINAL
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Be it enacted by the Legislature of Louisiana:1
Section 1. Chapter 1-C of Code Title IV of Code Book III of Title 9 of the Louisiana2
Revised Statutes, comprised of R.S. 9:2718 through 2720.15, is hereby enacted to read as3
follows:4
CHAPTER 1-C SURROGACY CONTRACTS5
PART I. DEFINITIONS6
§2718. Definition of terms7
As used in this Chapter, the following terms shall have the meanings ascribed8
to them unless otherwise provided for or unless the context otherwise indicates:9
(1) "Gamete" means either a sperm or an egg.10
(2) "Genetic surrogacy" means the process by which a woman attempts to11
carry and give birth to a child using her own gametes and either the gametes of a12
person who intends to parent the child or donor gametes, when there is an agreement13
to relinquish the custody of and all rights and obligations to the child.14
(3) "Gestational surrogacy" means the process by which a woman attempts15
to carry and give birth to a child by means of in vitro fertilization using the gametes16
of the intended parents and to which the gestational surrogate has made no genetic17
contribution.18
(4) "Gestational surrogate" means a woman who agrees to engage in a19
gestational surrogacy.20
(5) "In utero implantation" means the medical procedure whereby the genetic21
mother's egg is fertilized with the sperm of the genetic father, with the resulting22
embryo implanted in the uterus of the gestational surrogate.23
(6) "Intended parents" means married persons who contribute their gametes24
to be used in assisted reproduction, and who enter into an enforceable gestational25
surrogacy contract, as defined in this Chapter, with a gestational surrogate pursuant26
to which they will be recognized as the legal parents of the child resulting from that27
assisted reproduction.28 HLS 13RS-845 ORIGINAL
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PART II. GENETIC SURROGACY1
§2719. Contract for genetic surrogacy; nullity2
A contract for genetic surrogacy shall be absolutely null .3
Comments - 20134
(a) This Section continues the longstanding disapproval of contracts for5
genetic surrogacy, which began in 1987 in the wake of the controversial "Baby M"6
case. See In re Baby M, 537 A.2d 1227 (N.J. 1988). A surrogacy arrangement that7
would allow a mother to agree to relinquish her biological child in advance of its8
birth violates the public policy of this state and is, therefore, unenforceable, whether9
the contract is gratuitous or onerous.10
(b) If individuals choose to ignore the provisions of this Chapter and engage11
in prohibited forms of surrogacy, this Chapter provides them no legal protection.12
Parentage, custody, and other questions will be determined in accordance with the13
general provisions of Louisiana law. See, e.g., C.C. Art. 184.14
PART III. GESTATIONAL SURROGACY15
§2720. Enforceability of gestational surrogacy contract16
A. In accordance with the requirements of this Part, a gestational surrogate,17
her spouse if she is married, and the intended parents may enter into a written18
contract, known as a gestational surrogacy contract.19
B. A gestational surrogacy contract is enforceable only if approved by a20
court in advance of in utero implantation, as provided in this Part.21
Comment - 201322
Subsection B makes it clear that entering into a gestational surrogacy contract23
is a significant legal act that must be approved by a court, just as an adoption of a24
minor must be judicially approved. This Part provides for state involvement, through25
judicial oversight, of the gestational surrogacy contract before, during, and after the26
assisted reproduction process. The purpose of early involvement is to ensure that the27
parties are appropriate for a gestational surrogacy contract, that they understand the28
consequences of what they are undertaking, and that the best interests of a child born29
of the gestational surrogacy contract are considered before the arrangement is30
approved. Parties who enter into a gestational surrogacy contract not meeting the31
requirements of this Part may not have their contract judicially approved; in such32
cases, the law provides no rights or remedies governing their disputes.33
§2720.1. Parties to a gestational surrogacy contract34
A gestational surrogate shall, at the time the gestational surrogacy contract35
is executed:36
(1) Be at least twenty-five years of age.37
(2) Have given birth to at least one child.38 HLS 13RS-845 ORIGINAL
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§2720.2. Contractual requirements1
A. In an enforceable gestational surrogacy contract, the gestational surrogate2
shall:3
(1) Agree to become pregnant by means of in utero implantation, using the4
gametes of the intended parents, and to give birth to the resulting child.5
(2) Agree to submit to reasonable medical evaluation and treatment during6
the term of the pregnancy, to adhere to reasonable medical instructions about7
prenatal health, and to execute medical records releases under R.S. 40:1299.96 in8
favor of the intended parents.9
(3) Certify that she has undergone at least two counseling sessions, separated10
by at least thirty days, with a licensed social worker, licensed psychologist, medical11
psychologist, licensed psychiatrist, or licensed counselor, to discuss the proposed12
surrogacy.13
(4) Agree, along with her spouse if she is married, to relinquish all rights and14
duties as the parents of a child born as a result of in utero implantation.15
B. In an enforceable gestational surrogacy contract, the intended parents16
shall:17
(1) Acknowledge that the gestational surrogate has sole authority with18
respect to medical decisionmaking during the term of the pregnancy consistent with19
the rights of a pregnant woman carrying her own biological child.20
(2) Agree to accept custody of and to assume full parental rights and21
responsibilities for the child immediately upon the child's birth, regardless of any22
impairment of the child.23
(3) Be recognized as the legal parents of the child.24
C. The parties shall agree upon a preliminary estimate of reasonable25
expenses and their allocation in accordance with R.S. 9:2720.5.26
Comments - 201327
(a) The gestational surrogacy contract regulated under this Part is a contract28
subject to the provisions governing Conventional Obligations or Contracts in Title29
IV, Book III of the Louisiana Civil Code.30 HLS 13RS-845 ORIGINAL
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(b) The contract must provide that the intended parents will be the parents1
of any child born pursuant to the contract while all others involved relinquish all2
parental rights and duties. In accordance with Paragraph A(4), the gestational3
surrogate is relieved of any legal responsibility for the child.4
(c) Paragraph B(1) is not intended to modify current law regarding a5
pregnant woman's prenatal care. A pregnant gestational surrogate's medical rights6
are consistent with the rights of a pregnant woman carrying her own biological child.7
(d) In requiring the parties to estimate expenses during the contracting8
process and to have this agreed-upon financial arrangement approved by the court,9
this Chapter mirrors the financial provisions of Louisiana adoption law. Mothers10
who relinquish their children for adoption in this state may not financially profit11
from the transaction, and are limited to recovery of actual and reasonable expenses.12
This and subsequent provisions of this Chapter subject contracts for gestational13
surrogacy to the same limitations on financial remuneration. See, e.g., Ch.C. Art.14
1223.15
(e) This Section speaks only to what must be provided for in the gestational16
surrogacy contract. There are additional requirements that must be met before a17
court may approve a gestational surrogacy agreement. See, e.g., R.S. 9:2720.118
(detailing requirements of eligibility for the gestational surrogate) and R.S. 9:2720.319
(setting out residence and other procedural requirements).20
§2720.3. Proceeding to approve surrogacy contract21
A. Prior to in utero implantation, the intended parents or the gestational22
surrogate and her husband, if she is married, may seek court approval of a gestational23
surrogacy contract by initiating a summary proceeding in either the court exercising24
jurisdiction over the adoption of minors in the parish of domicile of the intended25
parents or of the gestational surrogate.26
B. A proceeding to approve a gestational surrogacy contract shall be27
maintained only if:28
(1) The gestational surrogate and the intended parents have been domiciled29
in this state for at least one hundred eighty days at the time the summary proceeding30
is initiated.31
(2) The intended parents, the gestational surrogate, and her spouse, if she is32
married, are all parties to the proceeding.33
(3) A copy of the proposed gestational surrogacy contract is attached to the34
motion.35
Comments - 201336
(a) A proceeding to approve a gestational surrogacy contract must be37
initiated in the court exercising jurisdiction over the adoption of minors because of38 HLS 13RS-845 ORIGINAL
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the similarity between these proceedings. Depending on the parish, the appropriate1
court may include a family court, juvenile court, district court, or civil district court.2
(b) To discourage forum shopping, Paragraph (B)(1) requires that the3
proceeding be initiated in Louisiana if the intended parents and the gestational4
surrogate have been residents for at least one hundred and eighty days.5
§2720.4. Institution of records check6
A. Upon the initiation of the summary proceeding, the court shall7
immediately issue the following orders:8
(1) That the local sheriff or the office of state police, Louisiana Bureau of9
Criminal Identification and Information, conduct a records check for all federal10
arrests and convictions and all state arrests and convictions for each of the intended11
parents and the gestational surrogate and her spouse, if she is married.12
(2) That the Department of Children and Family Services conduct a records13
check for validated complaints of child abuse or neglect in this or any other state in14
which either of the intended parents and the gestational surrogate and her spouse, if15
she is married, has been domiciled since becoming a major.16
(3) That the Judicial Administrator's Office of the Louisiana Supreme Court17
conduct a records check for court orders entered into the Louisiana Protective Order18
Registry involving each of the intended parents and the gestational surrogate and her19
spouse, if she is married.20
B. Each order shall state the full name, date of birth, social security number,21
and former and current state of domicile since becoming a major of each subject of22
the records check.23
C. The sheriff or the office of state police, Louisiana Bureau of Criminal24
Identification and Information, the Department of Children and Family Services, and25
the Judicial Administrator's Office of the Louisiana Supreme Court shall accord26
priority to these orders and shall provide a certificate to the court indicating all27
information discovered, or that no information has been found.28
§2720.5. Pre-Implantation Order29
A. Within sixty days of the initiation of a proceeding to approve a gestational30
surrogacy contract, the court shall set the matter for hearing, and after the hearing31 HLS 13RS-845 ORIGINAL
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may issue an order, known as the Pre-Implantation Order, approving the gestational1
surrogacy contract and declaring that the intended parents shall be recognized as the2
legal parents of a child born pursuant to the gestational surrogacy contract.3
B. The court shall issue a Pre-Implantation Order upon finding that:4
(1) The requirements of R.S. 9:2720 through 2720.4 have been satisfied and5
the reports of criminal records, validated complaints of child abuse or neglect, and6
Louisiana Protective Order Registry checks show that there is no risk of harm to the7
child.8
(2) Provisions have been made for all reasonable health care and legal9
expenses associated with the gestational surrogacy contract until the birth of the10
child, including responsibility for those expenses if the contract is terminated.11
(3) The gestational surrogate will receive no compensation other than:12
(a) Reasonable medical expenses, including hospital, testing, nursing,13
midwifery, pharmaceutical, travel, or other similar expenses, incurred by the14
gestational surrogate for prenatal care and those medical and hospital expenses15
incurred incidental to the birth.16
(b) Reasonable expenses incurred for mental health counseling services17
provided to the gestational surrogate prior to the birth and up to six months after18
birth.19
(c) Reasonable living expenses incurred by the gestational surrogate before20
the birth of the child and for no more than sixty days after the birth during which, on21
the written advice of a physician, the gestational surrogate is unable to work or22
otherwise support herself for medical reasons due to complications associated with23
the pregnancy or birth of the child.24
(d) Reasonable travel costs related to the pregnancy and delivery, court costs,25
and attorney fees incurred by the gestational surrogate.26
(4) The parties understand the contract and give free consent.27
Comments - 201328
(a) This pre-implantation authorization process for a gestational surrogacy29
contract is roughly analogous to prevailing adoption procedures. Just as adoption30 HLS 13RS-845 ORIGINAL
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contemplates the transfer of parentage of a child from the birth parents to the1
adoptive parents, a gestational surrogacy contract involves the transfer from the2
gestational mother to the intended parents. This Chapter is designed to protect the3
interests of the child to be born under the gestational surrogacy contract as well as4
the interests of the gestational surrogate and the intended parents.5
(b) This Section seeks to protect the interests of the child in several ways.6
The major protection of the child is the authorization procedure itself. This Chapter7
requires closely supervised gestational surrogacy arrangements to ensure the security8
and well-being of the resulting child. Once a proceeding has been initiated,9
Subsection A permits requires the court to approve a gestational surrogacy contract10
only if the requirements of this Part are met. If it approves, the court must declare11
that the intended parents will be the parents of any child born pursuant to, and during12
the term of, the contract.13
(c) The expense provisions of this Section largely track those applicable to14
allowable expenses in connection with the adoption of minors, with some15
modifications. See Ch.C. Art. 1223.16
§2720.6. Multiple implantation attempts17
If there are multiple attempts at in utero implantation, the gestational18
surrogacy contract and the Pre-Implantation Order shall continue in full force and19
effect in accordance with the parties' agreement until terminated pursuant to R.S.20
9:2720.9 or 2720.11, or until a live birth occurs pursuant to the gestational surrogacy21
contract.22
§2720.7. Confidentiality23
A. All proceedings governed by this Chapter shall be heard by the judge in24
chambers or in a closed hearing, and no one shall be admitted to the hearings except25
the parties in interest, their attorneys, and officers of the court. The court, in its26
discretion, may grant the request of a petitioner to permit others to be present at the27
hearing.28
B. The court records of these proceedings and the identities of the parties to29
a gestational surrogacy contract shall be sealed and are subject to disclosure, release,30
or inspection only upon application to the court and in conformity with the31
applicable requirements of confidentiality applicable to adoptions in the Children's32
Code.33
§2720.8. Continuing and exclusive jurisdiction34
Subject to the jurisdictional requirements of Uniform Child Custody35
Jurisdiction and Enforcement Act, the court having jurisdiction over the proceeding36 HLS 13RS-845 ORIGINAL
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to approve a gestational surrogacy contract pursuant to this Part shall have exclusive,1
continuing jurisdiction of all matters arising out of the gestational surrogacy contract.2
Comment - 20133
This Section is designed to minimize the possibility of parallel litigation in4
different states and the consequent risk of kidnapping for strategic purposes.5
§2720.9. Termination of contract by notice6
A. Before each in utero implantation, the gestational surrogate or either of7
the intended parents may terminate the gestational surrogacy contract by filing a8
motion with the court giving notice of termination and serving all other parties with9
the motion. Upon filing of the motion, the court shall issue an order vacating the10
Pre-Implantation Order.11
B. Neither a gestational surrogate nor her spouse, if she is married, is liable12
to the intended parents for terminating a gestational surrogacy contract pursuant to13
this Section.14
C. Absent timely notice of termination by an intended parent or the15
gestational surrogate, no court shall terminate a gestational surrogacy contract after16
issuance of a valid Pre-Implantation Order except for good cause shown after a17
hearing. No court shall terminate a gestational surrogacy contract after a successful18
in utero implantation.19
Comments - 201320
(a) Subsection A permits a party to terminate a gestational surrogacy contract21
after the Pre-Implantation Order by canceling the arrangement before in utero22
implantation has occurred. This provides for cancellation during a time when the23
interests of the parties would not be unduly prejudiced by termination. The intended24
parents certainly have an expectation interest during this time, but the nature of this25
interest is little different from that which they would have while they were26
attempting to create a pregnancy through traditional means.27
(b) It is certainly possible that if the gestational surrogate terminates the28
gestational surrogacy contract after issuance of a Pre-Implantation Order, the29
intended parents may have already expended substantial sums to undergo the30
fertilization process. Fertilization costs may not be recovered from the gestational31
surrogate, however, as any resulting embryos are genetically related to the intended32
parents, and could be used by the intended parents in future attempts at assisted33
reproduction.34
(c) Once a human embryo exists, it is subject to the rules regulating human35
embryos in R.S. 9:121-133.36 HLS 13RS-845 ORIGINAL
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(d) The use of the word "each" in Subsection A indicates that the possibility1
of termination by notice remains before each implantation attempt, even if there are2
multiple attempts.3
(e) Good cause may include a finding of some change in circumstances that4
would have prevented the court from issuing the Pre-Implantation Order. A change5
in the results of criminal history, child abuse, or domestic violence registry checks6
after issuance of the Pre-Implantation Order, for instance, may provide good cause7
for termination.8
§2720.10. Remedies9
After in utero implantation, a failure to perform under the gestational10
surrogacy contract does not give rise to the right to dissolution. The parties' rights11
and responsibilities are otherwise governed by the rules of the Titles on Obligations12
in General and Conventional Obligations or Contracts.13
Comment - 201314
Before each in utero implantation, the gestational surrogate or either intended15
parent may terminate the gestational surrogacy contract by giving the timely notice16
provided for in R.S. 9:2720.9. After implantation, the remedy of contractual17
dissolution would be inequitable. If the intended parents failed to pay the18
agreed-upon expenses, for instance, allowing the gestational surrogate to take19
advantage of extra-judicial dissolution procedures would not be an appropriate20
remedy given the nature of the multiple and conflicting interests involved. The21
damages, specific performance, and other provisions of the Title on Conventional22
Obligations or Contracts, however, do apply to gestational surrogacy contracts.23
§2720.11. Termination of contract and effects of divorce, nullity, or death24
A. A judgment of divorce or judicial declaration of nullity of a marriage25
between the intended parents, entered before in utero implantation, shall terminate26
the gestational surrogacy contract. Upon the filing of a motion notifying the court27
of the judgment of divorce or declaration of nullity, the court shall issue an order28
vacating the Pre-Implantation Order.29
B. If an intended parent dies before in utero implantation, the deceased30
individual is not a parent of the resulting child unless the child was born within three31
years of the death of the decedent and the deceased agreed in writing that if the in32
utero implantation were to occur after death, the deceased individual would be a33
parent of the child and that the child would have all rights, including the capacity to34
inherit from the decedent.35 HLS 13RS-845 ORIGINAL
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Comments - 20131
(a) This Section provides an effect for divorce or declaration of nullity only2
before in utero implantation. A judgment of divorce or judicial declaration of nullity3
of a marriage between the intended parents, entered after in utero implantation, does4
not terminate the gestational surrogacy contract. Custody of the resulting child5
would be determined by reference to the child custody provisions of Louisiana Civil6
Code Book I, Title V, Chapter 2, Section 3. Likewise, if an intended parent dies7
after in utero implantation, the tutorship provisions of the Louisiana Civil Code,8
found in Book I, Title VIII, would apply to provide for rules governing the person9
and property of the resulting minor child.10
(b) This Section tracks the policy and language of R.S. 9:391.1, which11
regulates children conceived after the death of a parent using the decedent's gametes.12
§2720.12. Effect of subsequent marriage13
After the issuance of a Pre-Implantation Order, subsequent marriage of the14
gestational surrogate does not affect the validity of a gestational surrogacy contract.15
The consent of the spouse is not required, and he is not a presumed father of the16
resulting child, notwithstanding any legal presumption to the contrary.17
Comment - 201318
If, after the original court order approves the gestational surrogacy contract,19
the gestational surrogate marries, the contract continues to be valid and the consent20
of her new spouse is not required. The new spouse is not a party to the original21
action and should not be the presumed legal father of the resulting child. Under this22
Part, the intended parents are the child's legal parents. The spouse of the gestational23
surrogate will not hold the status of a legal parent unless he is the genetic father or24
adopts the child.25
§2720.13. Post-Birth Order26
A. Upon birth of a child to a gestational surrogate within three hundred days27
after in utero implantation, the intended parents or their successors, the gestational28
surrogate, or her spouse shall file a motion requesting issuance of a Post-Birth Order.29
The motion shall be accompanied by a certified copy of the child's original birth30
certificate and an affidavit executed by the intended parents containing an accounting31
of fees and charges paid or agreed to be paid by or on behalf of the intended parents32
in connection with the gestational surrogacy contract.33
B. If neither the intended parents, their successors, the gestational surrogate,34
or her spouse file the motion described in Subsection A, the Department of Children35
and Family Services may file a motion notifying the court that a child has been born36 HLS 13RS-845 ORIGINAL
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to the gestational surrogate within three hundred days after in utero implantation and1
the court shall set the motion for hearing.2
C. The court may order a hearing and, after finding that the parties have3
complied with this Part, shall issue a Post-Birth Order:4
(1) Confirming that the intended parents are the legal parents of the child and5
are financially responsible for the child;6
(2) If necessary, ordering that the child be surrendered to the intended7
parents; and8
(3) Directing that a new birth certificate be created and that the intended9
parents be listed on the birth certificate as the parents of the child pursuant to R.S.10
40:32 et seq., and that the original birth certificate be sealed and subject to release11
or inspection only upon application to the court for good cause shown.12
§2720.14. DNA testing13
A. If the child is alleged not to be the child of the intended parents, supported14
by a sworn affidavit alleging specific facts which either tend to prove or deny15
filiation, the court shall order genetic testing to determine the parentage of the child.16
If the court finds after a contradictory hearing that the child is the genetic child of the17
surrogate, the court shall issue an order recognizing her as a legal parent of the child.18
B. If any party refuses to submit to such tests, the court may resolve the19
question of filiation against such party or enforce its order if the rights of others and20
the interests of justice so require.21
Comments - 201322
(a) Such an allegation may be raised in a number of different proceedings,23
including a filiation, disavowal, or contestation action. See, e.g., C.C. Arts. 187,24
191, 197, 198. The prescriptive or peremptive period applicable to such an action25
will be determined by the applicable Civil Code Article for the particular form of26
action instituted.27
(b) DNA testing for paternity determinations is authorized and regulated by28
R.S. 9:396.29 HLS 13RS-845 ORIGINAL
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§2720.15. Finality; time limitations1
A. A party to the gestational surrogacy contract may bring an action to annul2
a Post-Birth Order; however, except as otherwise provided in this Part, no action to3
annul a Post-Birth Order may be brought except on the grounds of fraud or duress.4
B. An action to annul a Post-Birth Order based upon a claim of fraud or5
duress shall be brought:6
(1) Within one year from the date of the signing of the final decree or7
mailing of the notice of the judgment when required if the fraud or duress is8
perpetrated by anyone other than the intended parents.9
(2) Within two years from the date of the signing of the final decree or10
mailing of the notice of the judgment when required if the fraud or duress is11
perpetrated by an intended parent.12
Comment - 201313
The narrow grounds and relatively short window for nullifying a Post-Birth14
Order here are drawn, with some modifications, from Louisiana's grounds for15
annulling a final decree of adoption. There, as here, the parties' arrangement has16
been subject to substantial judicial scrutiny, and all parties involved have a special17
need for finality.18
Section 2. R.S. 40:34(B)(1)(a)(viii), (h)(v), (i), and (j) are hereby amended and19
reenacted to read as follows:20
§34. Vital records forms21
* * *22
B. The forms shall be printed and supplied or provided by electronic means23
by the state registrar and the required contents are:24
(1) Contents of birth certificate. The certificate of birth shall contain, as a25
minimum, the following items:26
(a) Full name of child.27
* * *28
(viii) In the case of a child born of a surrogate birth parent who is related by29
blood or affinity to a biological parent as a result of an enforceable gestational30 HLS 13RS-845 ORIGINAL
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surrogacy contract, as defined in R.S. 9:2720, the surname of the child's biological1
parents shall be the surname of the child.2
* * *3
(h)4
* * *5
(v) In the case of a child born of a surrogate birth parent who is related by6
blood or affinity to a biological parent as a result of an enforceable gestational7
surrogacy contract, as defined in R.S. 9:2720, the full name of the biological parent8
who is proven to be the father by DNA testing father shall be listed as the father.9
(i) Maiden name of mother; however, if the child was born of a surrogate10
birth parent who is related by blood or affinity to a biological parent as a result of an11
enforceable gestational surrogacy contract, as defined in R.S. 9:2720, the maiden12
name of the biological parent who is proven to be the mother by DNA testing mother13
shall be listed as the mother and the name of the surrogate birth parent is not14
required.15
(j) In the case of a child born of a surrogate birth parent who is related by16
blood or affinity to a biological parent as a result of an enforceable gestational17
surrogacy contract, as defined in R.S. 9:2720, the biological parents proven to be the18
mother and father by DNA testing shall be considered the parents of the child.19
* * *20
Section 3. R.S. 9:2713 is hereby repealed in its entirety.21
DIGEST
The digest printed below was prepared by House Legislative Services. It constitutes no part
of the legislative instrument. The keyword, one-liner, abstract, and digest do not constitute
part of the law or proof or indicia of legislative intent. [R.S. 1:13(B) and 24:177(E)]
Badon HB No. 433
Abstract: Prohibits genetic surrogacy contracts and provides for the enforceability of
gestational surrogacy contracts.
Proposed law (R.S. 9:2718) defines the following terms: "gamete", "genetic surrogacy",
"gestational surrogacy", "gestational surrogate", "in utero implantation", and "intended
parents". HLS 13RS-845 ORIGINAL
HB NO. 433
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CODING: Words in struck through type are deletions from existing law; words underscored
are additions.
Proposed law (R.S. 9:2719) provides that a contract for genetic surrogacy shall be absolutely
null.
Proposed law (R.S. 9:2720) provides that a gestational surrogacy contract is only enforceable
if approved by a court before in utero implantation.
Proposed law (R.S. 9:2720.1) requires a gestational surrogate to be at least 25 years of age
and to have already given birth to at least one child at the time the gestational surrogacy
contract is executed.
Proposed law (R.S. 9:2720.2) requires the gestational surrogate to do the following in a
gestational surrogacy contract:
(1)Agree to become pregnant by in utero implantation, using the gametes of the
intended parents, and give birth to the resulting child.
(2)Agree to submit to reasonable medical testing and instructions regarding prenatal
health and to execute a medical records release in favor of the intended parents.
(3)Certify that she has attended at least two counseling sessions, separated by at least
30 days, with a mental health professional.
(4)Agree to relinquish all rights of the child born as a result of the in utero implantation.
If the surrogate is married, her spouse must also relinquish all rights.
Proposed law further requires the intended parents to do the following in a gestational
surrogacy contract:
(1)Acknowledge that the gestational surrogate has sole authority with respect to medical
decisionmaking during the pregnancy.
(2)Agree to accept custody and full parental rights of the child, regardless of any
impairment of the child.
(3)Be recognized as the legal parents of the child.
Proposed law requires the parties to agree on a preliminary estimate of reasonable expenses.
Proposed law (R.S. 9:2720.3) allows the parties to the gestational surrogacy contract to seek
court approval of a gestational surrogacy contract before in utero implantation by initiating
a summary proceeding in the court exercising jurisdiction over adoptions where the intended
parents or gestational surrogate reside.
Proposed law (R.S. 9:2720.4) requires the court to order background checks on each of the
intended parents, the gestational surrogate, and her spouse, if married, from the following
entities:
(1)The local sheriff or the office of the state police, Louisiana Bureau of Criminal
Identification and Information.
(2)The Department of Children and Family Services.
(3)The Judicial Administrator's Office of the Louisiana Supreme Court.
Proposed law (R.S. 9:2720.5) requires the court to set a hearing within 60 days of the
initiation of a proceeding to approve a gestational surrogacy contract and requires the court
to issue a Pre-Implantation Order approving the gestational surrogacy contract upon finding
the following: HLS 13RS-845 ORIGINAL
HB NO. 433
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are additions.
(1)All requirements of proposed law regarding gestational surrogacy contracts have
been satisfied and that the background checks show there is no risk of harm to the
child.
(2)Provisions have been made for all reasonable health care and legal expenses
associated with the gestational surrogacy contract.
(3)The gestational surrogate will only be compensated for reasonable medical expenses,
mental health counseling expenses, reasonable living expenses during the pregnancy
and not to exceed two months after the birth of the child, and reasonable travel costs.
(4)The parties understand the contract and give free consent.
Proposed law (R.S. 9:2720.6) provides that the gestational surrogacy contract and the Pre-
Implantation Order shall remain in full force and effect in accordance with the parties
agreement or until a live birth occurs when there are multiple attempts at in utero
implantation.
Proposed law (R.S. 9:2720.7) requires all proceedings and court records relative to the
gestational surrogacy contract be held and maintained confidentially.
Proposed law (R.S. 9:2720.8) provides for the continuing and exclusive jurisdiction of the
court approving a gestational surrogacy contract for matters relative to a gestational
surrogacy contract.
Proposed law (R.S. 9:2720.9) allows the intended parents or the gestational surrogate to
terminate a gestational surrogacy contract before in utero implantation by filing notice of
termination with the court and serving all parties. Further provides that neither a gestational
surrogate, nor her spouse, is liable to the intended parents for terminating a gestational
surrogacy contract. Also prohibits the court from terminating a gestational surrogacy
contract after issuing a valid Pre-Implantation order, except for good cause, or after a
successful in utero implantation.
Proposed law (R.S. 9:2720.10) provides for remedies for the failure to perform under a
gestational surrogacy contract.
Proposed law (R.S. 9:2720.11) requires the court to issue an order vacating the Pre-
Implantation order when a judgment of divorce or judicial declaration of nullity of a
marriage between the intended parents is entered before in utero implantation. Further
provides that an intended parent who dies before in utero implantation is considered a parent
of a resulting child only when the child is born within three years of the death of the intended
parent and the deceased agreed in writing that the deceased would be a parent of the child
if the in utero implantation occurred after death.
Proposed law (R.S. 9:2720.12) provides that the subsequent marriage of the gestational
surrogate has no effect on the validity of a gestational surrogacy contract.
Proposed law (R.S. 9:2720.13) requires the intended parents or the gestational surrogate to
file a motion requesting issuance of a Post-Birth Order upon birth of a child within 300 days
of in utero implantation. Authorizes DCFS to file the motion if the parties fail to do so.
Proposed law requires the court to issue a Post-Birth Order, after finding the parties have
complied with the requirements of proposed law, which shall contain the following:
(1)Confirmation that the intended parents are the legal parents.
(2)An order that the child be surrendered to the intended parents. HLS 13RS-845 ORIGINAL
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(3)An order for the creation of a new birth certificate listing the intended parents as the
parents of the child and for the original birth certificate to be sealed.
Proposed law (R.S. 9:2720.14) provides for DNA testing when the child is alleged not to be
the child of the intended parents.
Proposed law (R.S. 9:2720.15) restricts basis of annulment of a Post-Birth Order to
allegations of fraud and duress. Requires an action to annul be brought within one year from
the date of the signing of the final decree or mailing of the notice of judgment when it is
alleged that someone other than the intended parents perpetrated the fraud or duress, or two
years from the date of signing if an intended parent is alleged to have perpetrated the fraud
or duress.
Present law provides for the surname of the child, the name of the father, and the name of
the mother when a child is born of a surrogate birth parent. Further limits a surrogate birth
parent to one who "is related by blood or affinity to a biological parent".
Proposed law retains present law except that it eliminates the provision limiting a surrogate
birth parent to one who "is related by blood or affinity to a biological parent" and makes
changes consistent with proposed law.
Present law prohibits a "contract for surrogate motherhood" defined as any agreement
whereby a person not married to the contributor of the sperm agrees for valuable
consideration to be inseminated, to carry any resulting fetus to birth, and then to relinquish
to the contributor of the sperm the custody and all rights and obligations to the child.
Proposed law repeals present law.
(Amends R.S. 40:34(B)(1)(a)(viii), (h)(v), (i), and (j); Adds R.S. 9:2718-2720.15; Repeals
R.S. 9:2713)