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Regular Session, 2013
SENATE BILL NO. 162
BY SENATOR GARY SMITH
Prefiled pursuant to Article III, Section 2(A)(4)(b)(i) of the Constitution of Louisiana.
CHILDREN. Provides for surrogacy contracts. (8/1/13)
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 of3
1950, to be comprised of R.S. 9:2718 through 2720.15, and to repeal R.S. 9:2713,4
relative to surrogacy contracts; to provide for amendments to birth certificates; to5
provide for definitions relative to surrogacy contracts; to provide for genetic6
surrogacy contracts; to provide for the enforceability of gestational surrogacy7
contracts; to provide for the parties to a gestational surrogacy contract; to provide for8
contractual requirements for a gestational surrogacy contract; to provide for a9
proceeding to approve a gestational surrogacy contract; to provide for the check of10
the criminal records of the parties to a gestational surrogacy contract; to provide for11
a pre-implantation order relative to a gestational surrogacy contract; to provide for12
matters relative to multiple attempts at in utero implantation; to provide for13
confidentiality of the proceedings relative to a gestational surrogacy contract; to14
provide for continuing and exclusive jurisdiction to the proceedings relative to a15
gestational surrogacy contract; to provide for the termination of a gestational16
surrogacy contract by notice; to provide for remedies for the failure to perform under17 SB NO. 162
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a gestational surrogacy contract; to provide for the termination of a gestational1
surrogacy contract and for the effects of divorce, nullity, and death on a gestational2
surrogacy contract; to provide for the effect of a subsequent marriage of the3
gestational surrogate on a gestational surrogacy contract; to provide for a post-birth4
order; to provide for DNA testing when the child is alleged not to be the child of the5
intended parents; to provide for time limitations and finality; and to provide for6
related matters.7
Be it enacted by the Legislature of Louisiana:8
Section 1. Chapter 1-C of Code Title IV, of Code Book III, of Title 9 of the9
Louisiana Revised Statutes of 1950, to be comprised of R.S. 9:2718 through 2720.15, is10
hereby enacted to read as follows:11
CHAPTER 1-C SURROGACY CONTRACTS12
PART I. DEFINITIONS13
§2718. Definition of terms14
As used in this Chapter, the following terms shall have the meanings15
ascribed to them in this Section unless otherwise provided for or unless the16
context otherwise indicates:17
(1) "Gamete" means either a sperm or an egg.18
(2) "Genetic surrogacy" means the process by which a woman attempts19
to carry and give birth to a child using her own gametes and either the gametes20
of a person who intends to parent the child or donor gametes, when there is an21
agreement to relinquish the custody of and all rights and obligations to the22
child.23
(3) "Gestational surrogacy" means the process by which a woman24
attempts to carry and give birth to a child by means of in vitro fertilization25
using the gametes of the intended parents and to which the gestational surrogate26
has made no genetic contribution.27
(4) "Gestational surrogate" means a woman who agrees to engage in a28
gestational surrogacy.29 SB NO. 162
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(5) "In utero implantation" means the medical procedure whereby the1
genetic mother's egg is fertilized with the sperm of the genetic father, with the2
resulting embryo implanted in the uterus of the gestational surrogate.3
(6) "Intended parents" means married persons who contribute their4
gametes to be used in assisted reproduction, and who enter into an enforceable5
gestational surrogacy contract, as defined in this Chapter, with a gestational6
surrogate pursuant to which they will be the legal parents of the child resulting7
from that assisted reproduction.8
PART II. GENETIC SURROGACY9
§2713. 2719. Contract for surrogate motherhood genetic surrogacy; nullity10
A. A contract for surrogate motherhood as defined herein genetic surrogacy11
shall be absolutely null and shall be void and unenforceable as contrary to public12
policy.13
B. "Contract for surrogate motherhood" means any agreement whereby a14
person not married to the contributor of the sperm agrees for valuable consideration15
to be inseminated, to carry any resulting fetus to birth, and then to relinquish to the16
contributor of the sperm the custody and all rights and obligations to the child.17
Comments - 201318
(a) This Section continues the longstanding disapproval of contracts for19
genetic surrogacy, which began in 1987 in the wake of the controversial "Baby M"20
case. See In re Baby M, 537 A.2d 1227 (N.J. 1988). A surrogacy arrangement that21
would allow a mother to agree to relinquish her biological child in advance of its22
birth violates the public policy of this state and is, therefore, unenforceable, whether23
the contract is gratuitous or onerous.24
25
(b) If individuals choose to ignore the provisions of this Chapter and engage26
in prohibited forms of surrogacy, this Chapter provides them no legal protection.27
Parentage, custody, and other questions will be determined in accordance with the28
general provisions of Louisiana law. See, e.g., C.C. Art. 184.29
30
PART III. GESTATIONAL SURROGACY31
§2720. Enforceability of gestational surrogacy contract32
A. In accordance with the requirements of this Part, a gestational33
surrogate, her spouse if she is married, and the intended parents may enter into34
a written contract, known as a gestational surrogacy contract.35 SB NO. 162
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B. A gestational surrogacy contract is enforceable only if approved by1
a court in advance of in utero implantation, as provided in this Part.2
Comment - 20133
Subsection B makes it clear that entering into a gestational surrogacy contract4
is a significant legal act that must be approved by a court, just as an adoption of a5
minor must be judicially approved. This Part provides for state involvement, through6
judicial oversight, of the gestational surrogacy contract before, during, and after the7
assisted reproduction process. The purpose of early involvement is to ensure that the8
parties are appropriate for a gestational surrogacy contract, that they understand the9
consequences of what they are undertaking, and that the best interests of a child born10
of the gestational surrogacy contract are considered before the arrangement is11
approved. Parties who enter into a gestational surrogacy contract not meeting the12
requirements of this Part may not have their contract judicially approved; in such13
cases, the law provides no rights or remedies governing their disputes.14
15
§2720.1. Parties to a gestational surrogacy contract16
A gestational surrogate shall, at the time the gestational surrogacy17
contract is executed:18
(1) Be at least twenty-five years of age.19
(2) Have given birth to at least one child.20
§2720.2. Contractual requirements21
A. In an enforceable gestational surrogacy contract, the gestational22
surrogate shall:23
(1) Agree to become pregnant by means of in utero implantation, using24
the gametes of the intended parents, and to give birth to the resulting child.25
(2) Agree to submit to reasonable medical evaluation and treatment26
during the term of the pregnancy, to adhere to reasonable medical instructions27
about prenatal health, and to execute medical records releases under R.S.28
40:1299.96 in favor of the intended parents.29
(3) Certify that she has undergone at least two counseling sessions,30
separated by at least thirty days, with a licensed social worker, licensed31
psychologist, medical psychologist, licensed psychiatrist, or licensed counselor,32
to discuss the proposed surrogacy.33
(4) Agree, along with her spouse if she is married, to relinquish all rights34
and duties as the parents of a child born as a result of in utero implantation.35 SB NO. 162
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B. In an enforceable gestational surrogacy contract, the intended1
parents shall:2
(1) Acknowledge that the gestational surrogate has sole authority with3
respect to medical decision-making during the term of the pregnancy consistent4
with the rights of a pregnant woman carrying her own biological child.5
(2) Agree to accept custody of and to assume full parental rights and6
responsibilities for the child immediately upon the child's birth, regardless of7
any impairment of the child.8
(3) Be recognized as the legal parents of the child.9
C. The parties shall agree upon a preliminary estimate of reasonable10
expenses and their allocation in accordance with R.S. 9:2720.5.11
Comments - 201312
(a) The gestational surrogacy contract regulated under this Part is a contract13
subject to the provisions governing Conventional Obligations or Contracts in Title14
IV, Book III of the Louisiana Civil Code. 15
16
(b) The contract must provide that the intended parents will be the parents17
of any child born pursuant to the contract while all others involved relinquish all18
parental rights and duties. In accordance with Paragraph A(4), the gestational19
surrogate is relieved of any legal responsibility for the child.20
21
(c) Paragraph B(1) is not intended to modify current law regarding a22
pregnant woman's prenatal care. A pregnant gestational surrogate's medical rights23
are consistent with the rights of a pregnant woman carrying her own biological child.24
25
(d) In requiring the parties to estimate expenses during the contracting26
process and to have this agreed-upon financial arrangement approved by the court,27
this Chapter mirrors the financial provisions of Louisiana adoption law. Mothers28
who relinquish their children for adoption in this state may not financially profit29
from the transaction, and are limited to recovery of actual and reasonable expenses.30
This and subsequent provisions of this Chapter subject contracts for gestational31
surrogacy to the same limitations on financial remuneration. See, e.g., Ch.C. Art.32
1223.33
34
(e) This Section speaks only to what must be provided for in the gestational35
surrogacy contract. There are additional requirements that must be met before a court36
may approve a gestational surrogacy agreement. See, e.g., R.S. 9:2720.1 (detailing37
requirements of eligibility for the gestational surrogate) and R.S. 9:2720.3 (setting38
out residence and other procedural requirements).39
40
§2720.3. Proceeding to approve surrogacy contract41
A. Prior to in utero implantation, the intended parents or the gestational42
surrogate and her husband, if she is married, may initiate a summary43 SB NO. 162
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proceeding in the court exercising jurisdiction over the adoption of minors1
where the intended parents or the gestational surrogate reside, seeking to have2
the court approve a gestational surrogacy contract.3
B. A proceeding to approve a gestational surrogacy contract shall be4
maintained only if:5
(1) The gestational surrogate and the intended parents have been6
domiciled in this State for at least one hundred eighty days.7
(2) The intended parents, the gestational surrogate, and her spouse, if8
she is married, are all parties to the proceeding.9
(3) A copy of the proposed gestational surrogacy contract is attached to10
the motion.11
Comments - 201312
(a) A proceeding to approve a gestational surrogacy contract must be13
initiated in the court exercising jurisdiction over the adoption of minors because of14
the similarity between these proceedings. Depending on the parish, the appropriate15
court may include a family court, juvenile court, district court, or civil district court.16
(b) To discourage forum shopping, Paragraph (B)(1) requires that the17
proceeding be initiated in Louisiana if the intended parents and the gestational18
surrogate have been residents for at least one hundred and eighty days.19
20
§2720.4. Institution of records check21
A. Upon the initiation of the summary proceeding, the court shall22
immediately issue the following orders:23
(1) That the local sheriff or the office of state police, Louisiana Bureau24
of Criminal Identification and Information, conduct a records check for all25
federal arrests and convictions and all state arrests and convictions for each of26
the intended parents and the gestational surrogate and her spouse, if she is27
married.28
(2) That the Department of Children and Family Services conduct a29
records check for validated complaints of child abuse or neglect in this or any30
other state in which either of the intended parents and the gestational surrogate31
and her spouse, if she is married, has been domiciled since becoming a major.32
(3) That the Judicial Administrator's Office of the Louisiana Supreme33 SB NO. 162
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Court conduct a records check for court orders entered into the Louisiana1
Protective Order Registry involving each of the intended parents and the2
gestational surrogate and her spouse, if she is married.3
B. Each order shall state the full name, date of birth, social security4
number, and former and current state of domicile since becoming a major of5
each subject of the check.6
C. The sheriff or the office of state police, Louisiana Bureau of Criminal7
Identification and Information, the Department of Children and Family8
Services, and the Judicial Administrator's Office of the Louisiana Supreme9
Court shall accord priority to these orders and shall provide a certificate to the10
court indicating all information discovered, or that no information has been11
found.12
§2720.5. Pre-Implantation Order13
A. Within sixty days of the initiation of a proceeding to approve a14
gestational surrogacy contract, the court shall set the matter for hearing, and15
after the hearing may issue an order, known as the Pre-Implantation Order,16
approving the gestational surrogacy contract and declaring that the intended17
parents shall be recognized as the legal parents of a child born pursuant to the18
gestational surrogacy contract.19
B. The court shall issue a Pre-Implantation Order upon finding that:20
(1) The requirements of R.S. 9:2720-2720.3 have been satisfied and the21
reports of criminal records, validated complaints of child abuse or neglect, and22
Louisiana Protective Order Registry checks show that there is no risk of harm23
to the child.24
(2) Provisions have been made for all reasonable health care and legal25
expenses associated with the gestational surrogacy contract until the birth of the26
child, including responsibility for those expenses if the contract is terminated.27
(3) The gestational surrogate will receive no compensation other than:28
(a) Reasonable medical expenses, including hospital, testing, nursing,29 SB NO. 162
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midwifery, pharmaceutical, travel, or other similar expenses, incurred by the1
gestational surrogate for prenatal care and those medical and hospital expenses2
incurred incident to the birth.3
(b) Reasonable expenses incurred for mental health counseling services4
provided to the gestational surrogate prior to the birth and up to six months5
after birth.6
(c) Reasonable living expenses incurred by the gestational surrogate7
before the birth of the child and for no more than sixty days after the birth8
during which, on the written advice of a physician, the gestational surrogate is9
unable to work or otherwise support herself for medical reasons due to10
complications associated with the pregnancy or birth of the child.11
(d) Reasonable travel costs related to the pregnancy and delivery, court12
costs, and attorney fees incurred by the gestational surrogate.13
(4) The parties understand the contract and give free consent.14
Comments - 201315
(a) This pre-implantation authorization process for a gestational surrogacy16
contract is roughly analogous to prevailing adoption procedures. Just as adoption17
contemplates the transfer of parentage of a child from the birth parents to the18
adoptive parents, a gestational surrogacy contract involves the transfer from the19
gestational mother to the intended parents. This Chapter is designed to protect the20
interests of the child to be born under the gestational surrogacy contract as well as21
the interests of the gestational surrogate and the intended parents. 22
23
(b) This Section seeks to protect the interests of the child in several ways.24
The major protection of the child is the authorization procedure itself. This Chapter25
requires closely supervised gestational surrogacy arrangements to ensure the security26
and well-being of the resulting child. Once a proceeding has been initiated,27
Subsection A permits requires the court to approve a gestational surrogacy contract28
only if the requirements of this Part are met. If it approves, the court must declare29
that the intended parents will be the parents of any child born pursuant to, and during30
the term of, the contract.31
32
(c) The expense provisions of this Section largely track those applicable to33
allowable expenses in connection with the adoption of minors, with some34
modifications. See Ch.C. Art. 1223.35
36
§2720.6. Multiple implantation attempts37
If there are multiple attempts at in utero implantation, the gestational38
surrogacy contract and the Pre-Implantation Order shall continue in full force39
and effect in accordance with the parties' agreement until terminated under40 SB NO. 162
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R.S. 9:2720.9 or 2720.11, or until a live birth occurs pursuant to the gestational1
surrogacy contract.2
§2720.7. Confidentiality3
All proceedings governed by this Chapter shall be heard by the judge in4
chambers or in a closed hearing, and no one shall be admitted to the hearings5
except the parties in interest, their attorneys, and officers of the court. The6
court, in its discretion, may grant the request of a petitioner to permit others to7
be present at the hearing. The court records of these proceedings and the8
identities of the parties to a gestational surrogacy contract shall be sealed and9
are subject to disclosure, release or inspection only upon application to the10
court and in conformity with the applicable requirements of confidentiality11
applicable to adoptions in the Children's Code.12
§2720.8. Continuing and exclusive jurisdiction13
Subject to the jurisdictional requirements of Uniform Child Custody14
Jurisdiction and Enforcement Act, the court having jurisdiction over the15
proceeding to approve a gestational surrogacy contract pursuant to this Part16
shall have exclusive, continuing jurisdiction of all matters arising out of the17
gestational surrogacy contract.18
Comment - 201319
This Section is designed to minimize the possibility of parallel litigation in20
different states and the consequent risk of kidnapping for strategic purposes.21
22
§2720.9. Termination of contract by notice23
A. Before each in utero implantation, the gestational surrogate or either24
of the intended parents may terminate the gestational surrogacy contract by25
filing a motion with the court giving notice of termination and serving all other26
parties with the motion. Upon filing of the motion, the court shall issue an order27
vacating the Pre-Implantation Order.28
B. Neither a gestational surrogate nor her spouse, if she is married, is29
liable to the intended parents for terminating a gestational surrogacy contract30
pursuant to this Section.31 SB NO. 162
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C. Absent timely notice of termination by an intended parent or the1
gestational surrogate, no court shall terminate a gestational surrogacy contract2
after issuance of a valid Pre-Implantation Order except for good cause shown3
after a hearing. No court shall terminate a gestational surrogacy contract after4
a successful in utero implantation.5
Comments - 20136
(a) Subsection A permits a party to terminate a gestational surrogacy contract7
after the Pre-Implantation Order by canceling the arrangement before in utero8
implantation has occurred. This provides for cancellation during a time when the9
interests of the parties would not be unduly prejudiced by termination. The intended10
parents certainly have an expectation interest during this time, but the nature of this11
interest is little different from that which they would have while they were12
attempting to create a pregnancy through traditional means. 13
(b) It is certainly possible that if the gestational surrogate terminates the14
gestational surrogacy contract after issuance of a Pre-Implantation Order, the15
intended parents may have already expended substantial sums to undergo the16
fertilization process. Fertilization costs may not be recovered from the gestational17
surrogate, however, as any resulting embryos are genetically related to the intended18
parents, and could be used by the intended parents in future attempts at assisted19
reproduction.20
(c) Once a human embryo exists, it is subject to the rules regulating human21
embryos in R.S. 9:121-133.22
23
(d) The use of the word "each" in Subsection A indicates that the possibility24
of termination by notice remains before each implantation attempt, even if there are25
multiple attempts.26
27
(e) Good cause may include a finding of some change in circumstances that28
would have prevented the court from issuing the Pre-Implantation Order. A change29
in the results of criminal history, child abuse, or domestic violence registry checks30
after issuance of the Pre-Implantation Order, for instance, may provide good cause31
for termination. 32
33
§2720.10. Remedies34
After in utero implantation, a failure to perform under the gestational35
surrogacy contract does not give rise to the right to dissolution. The parties'36
rights and responsibilities are otherwise governed by the rules of the Titles on37
Obligations in General and Conventional Obligations or Contracts.38
Comment - 201339
Before each in utero implantation, the gestational surrogate or either intended40
parent may terminate the gestational surrogacy contract by giving the timely notice41
provided for in R.S. 9:2720.9. After implantation, the remedy of contractual42
dissolution would be inequitable. If the intended parents failed to pay the43
agreed-upon expenses, for instance, allowing the gestational surrogate to take44 SB NO. 162
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advantage of extra-judicial dissolution procedures would not be an appropriate1
remedy given the nature of the multiple and conflicting interests involved. The2
damages, specific performance, and other provisions of the Title on Conventional3
Obligations or Contracts, however, do apply to gestational surrogacy contracts.4
5
§2720.11. Termination of contract and effects of divorce, nullity, death6
A judgment of divorce or judicial declaration of nullity of a marriage7
between the intended parents, entered before in utero implantation, terminates8
the gestational surrogacy contract. Upon the filing of a motion notifying the9
court of the judgment of divorce or declaration of nullity, the court shall issue10
an order vacating the Pre-Implantation Order. If an intended parent dies11
before in utero implantation, the deceased individual is not a parent of the12
resulting child unless the child was born within three years of the death of the13
decedent and the deceased agreed in writing that if the in utero implantation14
were to occur after death, the deceased individual would be a parent of the child15
and that the child would have all rights, including the capacity to inherit from16
the decedent.17
Comments - 201318
(a) This Section provides an effect for divorce or declaration of nullity only19
before in utero implantation. A judgment of divorce or judicial declaration of nullity20
of a marriage between the intended parents, entered after in utero implantation, does21
not terminate the gestational surrogacy contract. Custody of the resulting child22
would be determined by reference to the child custody provisions of Louisiana Civil23
Code Book I, Title V, Chapter 2, Section 3. Likewise, if an intended parent dies24
after in utero implantation, the tutorship provisions of the Louisiana Civil Code,25
found in Book I, Title VIII, would apply to provide for rules governing the person26
and property of the resulting minor child.27
28
(b) This Section tracks the policy and language of R.S. 9:391.1, which29
regulates children conceived after the death of a parent using the decedent's gametes.30
31
§2720.12. Effect of subsequent marriage32
After the issuance of a Pre-Implantation Order, subsequent marriage of33
the gestational surrogate does not affect the validity of a gestational surrogacy34
contract. The consent of the spouse is not required, and he is not a presumed35
father of the resulting child, notwithstanding any legal presumption to the36
contrary.37
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If, after the original court order approves the gestational surrogacy contract,1
the gestational surrogate marries, the contract continues to be valid and the consent2
of her new spouse is not required. The new spouse is not a party to the original action3
and should not be the presumed legal father of the resulting child. Under this Part,4
the intended parents are the child's legal parents. The spouse of the gestational5
surrogate will not hold the status of a legal parent unless he is the genetic father or6
adopts the child.7
8
§2720.13. Post-Birth Order9
A. Upon birth of a child to a gestational surrogate within three hundred10
days after in utero implantation, the intended parents or their successors, the11
gestational surrogate, or her spouse shall file a motion requesting issuance of a12
Post-Birth Order. The motion shall be accompanied by a certified copy of the13
child's original birth certificate and an affidavit executed by the intended14
parents containing an accounting of fees and charges paid or agreed to be paid15
by or on behalf of the intended parents in connection with the gestational16
surrogacy contract.17
B. If neither the intended parents, their successors, the gestational18
surrogate, or her spouse file the motion described in Subsection A, the19
Department of Children and Family Services may file a motion notifying the20
court that a child has been born to the gestational surrogate within three21
hundred days after in utero implantation and the court shall set the motion for22
hearing.23
C. The court may order a hearing and, after finding that the parties24
have complied with this Part, shall issue a Post-Birth Order:25
(1) Confirming that the intended parents are the legal parents of the26
child and are financially responsible for the child.27
(2) If necessary, ordering that the child be surrendered to the intended28
parents.29
(3) Directing that a new birth certificate be created and that the30
intended parents be listed on the birth certificate as the parents of the child31
pursuant to R.S. 40:32 et seq., and that the original birth certificate be sealed32
and subject to release or inspection only upon application to the court for good33 SB NO. 162
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cause shown.1
§2720.14. DNA testing2
If the child is alleged not to be the child of the intended parents,3
supported by a sworn affidavit alleging specific facts which either tend to prove4
or deny filiation, the court shall order genetic testing to determine the parentage5
of the child. If the court finds after a contradictory hearing that the child is the6
genetic child of the surrogate, the court shall issue an order recognizing her as7
a legal parent of the child. If any party refuses to submit to such tests, the court8
may resolve the question of filiation against such party or enforce its order if the9
rights of others and the interests of justice so require.10
Comments - 201311
(a) Such an allegation may be raised in a number of different proceedings,12
including a filiation, disavowal, or contestation action. See, e.g., C.C. Arts. 187,13
191, 197, 198. The prescriptive or peremptive period applicable to such an action14
will be determined by the applicable Civil Code Article for the particular form of15
action instituted.16
17
(b) DNA testing for paternity determinations is authorized and regulated by18
R.S. 9:396.19
20
§2720.15. Finality; time limitations21
A. A party to the gestational surrogacy contract may bring an action to22
annul a Post-Birth Order. However, except as otherwise provided in this Part,23
no action to annul a Post-Birth Order may be brought except on the grounds of24
fraud or duress.25
B. An action to annul a Post-Birth Order based upon a claim of fraud26
or duress:27
(1) Perpetrated by anyone other than an intended parent shall be28
brought within one year from the date of the signing of the final decree or29
mailing of the notice of the judgment when required.30
(2) Perpetrated by an intended parent shall be brought within two years31
from the date of the signing of the final decree or mailing of the notice of the32
judgment when required.33
Comment - 201334 SB NO. 162
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The narrow grounds and relatively short window for nullifying a Post-Birth1
Order here are drawn, with some modifications, from Louisiana's grounds for2
annulling a final decree of adoption. There, as here, the parties' arrangement has3
been subject to substantial judicial scrutiny, and all parties involved have a special4
need for finality.5
6
Section 2. R.S. 40:34(B)(1)(a)(viii), (h)(v), (i), and (j) are hereby amended and7
reenacted to read as follows:8
§34. Vital records forms9
* * *10
B. The forms shall be printed and supplied or provided by electronic means by the11
state registrar and the required contents are:12
(1) Contents of birth certificate. The certificate of birth shall contain, as a minimum,13
the following items:14
(a) Full name of child.15
* * *16
(viii) In the case of a child born of a surrogate birth parent who is related by17
blood or affinity to a biological parent, as a result of an enforceable gestational18
surrogacy contract, as defined in R.S. 9:2720, the surname of the child's biological19
parents shall be the surname of the child.20
* * *21
(h)22
* * *23
(v) In the case of a child born of a surrogate birth parent who is related by24
blood or affinity to a biological parent, as a result of an enforceable gestational25
surrogacy contract, as defined in R.S. 9:2720, the full name of the biological26
parent father who is proven to be the father by DNA testing shall be listed as the27
father.28
(i) Maiden name of mother; however, if the child was born of a surrogate29
birth parent who is related by blood or affinity to a biological parent, as a result of30
an enforceable gestational surrogacy contract, as defined in R.S. 9:2720, the31
maiden name of the biological parent mother who is proven to be the mother by32 SB NO. 162
SLS 13RS-382 ORIGINAL
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Coding: Words which are struck through are deletions from existing law;
words in boldface type and underscored are additions.
DNA testing shall be listed as the mother and the name of the surrogate birth parent1
is not required.2
(j) In the case of a child born of a surrogate birth parent who is related by3
blood or affinity to a biological parent, as a result of an enforceable gestational4
surrogacy contract, as defined in R.S. 9:2720, the biological parents proven to be5
the mother and father by DNA testing shall be considered the parents of the child.6
Section 3. R.S. 9:2713 is hereby repealed.7
The original instrument and the following digest, which constitutes no part
of the legislative instrument, were prepared by Julie J. Baxter.
DIGEST
Present law provides that a contract for surrogate motherhood shall be absolutely null and
shall be void and unenforceable as contrary to public policy. Present law provides that
"Contract for surrogate motherhood" means 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 retains present law in part. Proposed law provides that a contract for genetic
surrogacy shall be absolutely null. Proposed law provides that "genetic surrogacy" means
the process by which a woman attempts to carry and give birth to a child using her own
gametes and either the gametes of a person who intends to parent the child or donor gametes,
when there is an agreement to relinquish the custody of and all rights and obligations to the
child.
Proposed law provides for the enforcement of gestational surrogacy contracts. Proposed law
provides that "gestational surrogacy" means the process by which a woman attempts to carry
and give birth to a child by means of in vitro fertilization using the gametes of the intended
parents and to which the gestational surrogate has made no genetic contribution.
Proposed law provides contractual requirements for an enforceable gestational surrogacy
contract.
Proposed law provides for a proceeding to approve a gestational surrogacy contract.
Proposed law provides for a records check of the parties to a gestational surrogacy contract.
Proposed law provides for a judicial "Pre-Implantation Order" prior to an in utero
implantation.
Proposed law provides for situations when multiple attempts at in utero implantation are
necessary.
Proposed law provides for the confidentially of the proceedings to the hearings relative to
a gestational surrogacy contract.
Proposed law provides for the continuing and exclusive jurisdiction of a court for matters
relative to a gestational surrogacy contract. SB NO. 162
SLS 13RS-382 ORIGINAL
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Coding: Words which are struck through are deletions from existing law;
words in boldface type and underscored are additions.
Proposed law provides for the termination of a gestational surrogacy contract by notice.
Proposed law provides for remedies for the failure to perform under a gestational surrogacy
contract.
Proposed law provides for the termination of a gestational surrogacy contract and for the
effects of divorce, nullity, and death on a gestational surrogacy contract.
Proposed law provides for the effect of a subsequent marriage of the gestational surrogate
on a gestational surrogacy contract.
Proposed law provides for a post-birth order.
Proposed law provides for DNA testing when the child is alleged not to be the child of the
intended parents.
Proposed law provides for time limitations and finality.
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. Present law provides that the
surrogate birth parent "is related by blood or affinity to a biological parent".
Proposed law also 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. Proposed law eliminates
the provision that provides that the surrogate birth parent "is related by blood or affinity to
a biological parent". Proposed law provides that the child is born of a surrogate birth parent
"as a result of an enforceable gestational surrogacy contract, as defined in R.S. 9:2720".
Proposed law repeals present law R.S. 9:2713 that provides for a contract for surrogate
motherhood.
Effective August 1, 2013.
(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)