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Regular Session, 2013
SENATE BILL NO. 162
BY SENATOR GARY SMITH (On Recommendation of the Louisiana State Law Institute)
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-embryo transfer order relative to a gestational surrogacy contract; to provide12
for matters relative to multiple attempts at in utero embryo transfer; 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 carrier 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 conceived by in vitro fertilization25
using the gametes of the intended parents and to which the gestational carrier26
has made no genetic contribution.27
(4) "Gestational carrier" means a woman who agrees to engage in a28
gestational surrogacy.29 SB NO. 162
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(5) "In utero embryo transfer" means the medical procedure whereby1
the genetic mother's egg is fertilized with the sperm of the genetic father, with2
the resulting embryo transferred into the uterus of the gestational carrier.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
carrier 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
carrier, 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 embryo transfer, 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 carrier shall, at the time the gestational surrogacy contract17
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
carrier shall:23
(1) Agree to become pregnant by means of in utero embryo transfer,24
using the gametes of the intended parents, and to give birth to the resulting25
child.26
(2) Agree to submit to reasonable medical evaluation and treatment27
during the term of the pregnancy, to adhere to reasonable medical instructions28
about prenatal health, and to execute medical records releases under R.S.29
40:1299.96 in favor of the intended parents.30
(3) Certify that she has undergone at least two counseling sessions,31
separated by at least thirty days, with a licensed social worker, licensed32
psychologist, medical psychologist, licensed psychiatrist, or licensed counselor,33
to discuss the proposed surrogacy.34
(4) Agree, along with her spouse if she is married, to relinquish all rights35 SB NO. 162
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and duties as the parents of a child born as a result of in utero embryo transfer.1
B. In an enforceable gestational surrogacy contract, the intended2
parents shall:3
(1) Acknowledge that the gestational carrier has sole authority with4
respect to medical decision-making during the term of the pregnancy consistent5
with the rights of a pregnant woman carrying her own biological child.6
(2) Agree to accept custody of and to assume full parental rights and7
responsibilities for the child immediately upon the child's birth, regardless of8
any impairment of the child.9
(3) Be recognized as the legal parents of the child.10
C. The parties shall agree upon a preliminary estimate of reasonable11
expenses and their allocation in accordance with R.S. 9:2720.5.12
Comments - 201313
(a) The gestational surrogacy contract regulated under this Part is a contract14
subject to the provisions governing Conventional Obligations or Contracts in Title15
IV, Book III of the Louisiana Civil Code. 16
17
(b) The contract must provide that the intended parents will be the parents18
of any child born pursuant to the contract while all others involved relinquish all19
parental rights and duties. In accordance with Paragraph A(4), the gestational20
surrogate is relieved of any legal responsibility for the child.21
22
(c) Paragraph B(1) is not intended to modify current law regarding a23
pregnant woman's prenatal care. A pregnant gestational surrogate's medical rights24
are consistent with the rights of a pregnant woman carrying her own biological child.25
26
(d) In requiring the parties to estimate expenses during the contracting27
process and to have this agreed-upon financial arrangement approved by the court,28
this Chapter mirrors the financial provisions of Louisiana adoption law. Mothers29
who relinquish their children for adoption in this state may not financially profit30
from the transaction, and are limited to recovery of actual and reasonable expenses.31
This and subsequent provisions of this Chapter subject contracts for gestational32
surrogacy to the same limitations on financial remuneration. See, e.g., Ch.C. Art.33
1223.34
35
(e) This Section speaks only to what must be provided for in the gestational36
surrogacy contract. There are additional requirements that must be met before a court37
may approve a gestational surrogacy agreement. See, e.g., R.S. 9:2720.1 (detailing38
requirements of eligibility for the gestational surrogate) and R.S. 9:2720.3 (setting39
out residence and other procedural requirements).40
41
§2720.3. Proceeding to approve surrogacy contract42
A. Prior to in utero embryo transfer, the intended parents or the43 SB NO. 162
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gestational carrier and her husband, if she is married, may initiate a summary1
proceeding in the court exercising jurisdiction over the adoption of minors2
where the intended parents or the gestational carrier reside, seeking to have the3
court approve a gestational surrogacy contract.4
B. A proceeding to approve a gestational surrogacy contract shall be5
maintained only if:6
(1) The gestational carrier and the intended parents have been domiciled7
in this State for at least one hundred eighty days.8
(2) The intended parents, the gestational carrier, and her spouse, if she9
is married, are all parties to the proceeding.10
(3) A copy of the proposed gestational surrogacy contract is attached to11
the motion.12
Comments - 201313
(a) A proceeding to approve a gestational surrogacy contract must be14
initiated in the court exercising jurisdiction over the adoption of minors because of15
the similarity between these proceedings. Depending on the parish, the appropriate16
court may include a family court, juvenile court, district court, or civil district court.17
(b) To discourage forum shopping, Paragraph (B)(1) requires that the18
proceeding be initiated in Louisiana if the intended parents and the gestational19
surrogate have been residents for at least one hundred and eighty days.20
21
§2720.4. Institution of records check22
A. Upon the initiation of the summary proceeding, the court shall:23
(1) Order and be entitled to the criminal history record and24
identification files of the Louisiana Bureau of Criminal Identification and25
Information on each of the intended parents and the gestational carrier and her26
spouse, if she is married, as a means of performing background checks on those27
individuals. The bureau shall, upon request and after receipt of fingerprint28
cards and other identifying information from the court, make available to the29
court information contained in the bureau's criminal history record and30
identification files, which pertains to each of the intended parents and the31
gestational carrier and her spouse, if she is married. In addition, in order to32
determine an applicant's suitability, the fingerprints shall be forwarded by the33 SB NO. 162
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bureau to the Federal Bureau of Investigation for a national criminal history1
record check. The bureau shall charge a processing fee as provided in R.S.2
15:587(B)(1).3
(2) Order that the Department of Children and Family Services conduct4
a records check for validated complaints of child abuse or neglect in this or any5
other state in which either of the intended parents and the gestational carrier6
and her spouse, if she is married, has been domiciled since becoming a major.7
(3) Order that the Judicial Administrator's Office of the Louisiana8
Supreme Court conduct a records check for court orders entered into the9
Louisiana Protective Order Registry involving each of the intended parents and10
the gestational carrier and her spouse, if she is married.11
B. Each order shall state the full name, date of birth, social security12
number, and former and current state of domicile since becoming a major of13
each subject of the check.14
C. The sheriff or the office of state police, Louisiana Bureau of Criminal15
Identification and Information, the Department of Children and Family16
Services, and the Judicial Administrator's Office of the Louisiana Supreme17
Court shall accord priority to these orders and shall provide a certificate to the18
court indicating all information discovered, or that no information has been19
found.20
§2720.5. Pre-Embryo Transfer Order21
A. Within sixty days of the initiation of a proceeding to approve a22
gestational surrogacy contract, the court shall set the matter for hearing, and23
after the hearing may issue an order, known as the Pre-Embryo Transfer24
Order, approving the gestational surrogacy contract and declaring that the25
intended parents shall be recognized as the legal parents of a child born26
pursuant to the gestational surrogacy contract.27
B. The court shall issue a Pre-Embryo Transfer Order upon finding28
that:29 SB NO. 162
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(1) The requirements of R.S. 9:2720-2720.3 have been satisfied and the1
reports of criminal records, validated complaints of child abuse or neglect, and2
Louisiana Protective Order Registry checks show that there is no risk of harm3
to the child.4
(2) Provisions have been made for all reasonable health care and legal5
expenses associated with the gestational surrogacy contract until the birth of the6
child, including responsibility for those expenses if the contract is terminated.7
(3) The gestational carrier will receive no compensation other than:8
(a) Reasonable medical expenses, including hospital, testing, nursing,9
midwifery, pharmaceutical, travel, or other similar expenses, incurred by the10
gestational carrier for prenatal care and those medical and hospital expenses11
incurred incident to the birth.12
(b) Reasonable expenses incurred for mental health counseling services13
provided to the gestational carrier prior to the birth and up to six months after14
birth.15
(c) Reasonable living expenses incurred by the gestational carrier before16
the birth of the child and for no more than sixty days after the birth.17
(d) Reasonable travel costs related to the pregnancy and delivery, court18
costs, and attorney fees incurred by the gestational carrier.19
(4) The parties understand the contract and give free consent.20
Comments - 201321
(a) This pre-implantation authorization process for a gestational surrogacy22
contract is roughly analogous to prevailing adoption procedures. Just as adoption23
contemplates the transfer of parentage of a child from the birth parents to the24
adoptive parents, a gestational surrogacy contract involves the transfer from the25
gestational mother to the intended parents. This Chapter is designed to protect the26
interests of the child to be born under the gestational surrogacy contract as well as27
the interests of the gestational surrogate and the intended parents. 28
29
(b) This Section seeks to protect the interests of the child in several ways.30
The major protection of the child is the authorization procedure itself. This Chapter31
requires closely supervised gestational surrogacy arrangements to ensure the security32
and well-being of the resulting child. Once a proceeding has been initiated,33
Subsection A permits requires the court to approve a gestational surrogacy contract34
only if the requirements of this Part are met. If it approves, the court must declare35
that the intended parents will be the parents of any child born pursuant to, and during36
the term of, the contract.37 SB NO. 162
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(c) The expense provisions of this Section largely track those applicable to1
allowable expenses in connection with the adoption of minors, with some2
modifications. See Ch.C. Art. 1223.3
4
§2720.6. Multiple embryo transfer attempts5
If there are multiple attempts at in utero embryo transfer, the gestational6
surrogacy contract and the Pre-Embryo Transfer Order shall continue in full7
force and effect in accordance with the parties' agreement until terminated8
under R.S. 9:2720.9 or 2720.11, or until a live birth occurs pursuant to the9
gestational surrogacy contract.10
§2720.7. Confidentiality11
All proceedings governed by this Chapter shall be heard by the judge in12
chambers or in a closed hearing, and no one shall be admitted to the hearings13
except the parties in interest, their attorneys, and officers of the court. The14
court, in its discretion, may grant the request of a petitioner to permit others to15
be present at the hearing. The court records of these proceedings and the16
identities of the parties to a gestational surrogacy contract shall be sealed and17
are subject to disclosure, release or inspection only upon application to the18
court and in conformity with the applicable requirements of confidentiality19
applicable to adoptions in the Children's Code.20
§2720.8. Continuing and exclusive jurisdiction21
Subject to the jurisdictional requirements of the Uniform Child Custody22
Jurisdiction and Enforcement Act, the court having jurisdiction over the23
proceeding to approve a gestational surrogacy contract pursuant to this Part24
shall have exclusive, continuing jurisdiction of all matters arising out of the25
gestational surrogacy contract.26
Comment - 201327
This Section is designed to minimize the possibility of parallel litigation in28
different states and the consequent risk of kidnapping for strategic purposes.29
30
§2720.9. Termination of contract by notice31
A. Before each in utero embryo transfer, the gestational carrier or either32
of the intended parents may terminate the gestational surrogacy contract by33 SB NO. 162
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filing a motion with the court giving notice of termination and serving all other1
parties with the motion. Upon filing of the motion, the court shall issue an order2
vacating the Pre-Embryo Transfer Order.3
B. Neither a gestational carrier nor her spouse, if she is married, is liable4
to the intended parents for terminating a gestational surrogacy contract5
pursuant to this Section.6
C. Absent timely notice of termination by an intended parent or the7
gestational carrier, no court shall terminate a gestational surrogacy contract8
after issuance of a valid Pre-Embryo Transfer Order except for good cause9
shown after a hearing. No court shall terminate a gestational surrogacy contract10
after a successful in utero embryo transfer.11
Comments - 201312
(a) Subsection A permits a party to terminate a gestational surrogacy contract13
after the Pre-Implantation Order by canceling the arrangement before in utero14
implantation has occurred. This provides for cancellation during a time when the15
interests of the parties would not be unduly prejudiced by termination. The intended16
parents certainly have an expectation interest during this time, but the nature of this17
interest is little different from that which they would have while they were18
attempting to create a pregnancy through traditional means. 19
(b) It is certainly possible that if the gestational surrogate terminates the20
gestational surrogacy contract after issuance of a Pre-Implantation Order, the21
intended parents may have already expended substantial sums to undergo the22
fertilization process. Fertilization costs may not be recovered from the gestational23
surrogate, however, as any resulting embryos are genetically related to the intended24
parents, and could be used by the intended parents in future attempts at assisted25
reproduction.26
(c) Once a human embryo exists, it is subject to the rules regulating human27
embryos in R.S. 9:121-133.28
29
(d) The use of the word "each" in Subsection A indicates that the possibility30
of termination by notice remains before each implantation attempt, even if there are31
multiple attempts.32
33
(e) Good cause may include a finding of some change in circumstances that34
would have prevented the court from issuing the Pre-Implantation Order. A change35
in the results of criminal history, child abuse, or domestic violence registry checks36
after issuance of the Pre-Implantation Order, for instance, may provide good cause37
for termination. 38
39
§2720.10. Remedies40
After in utero embryo transfer, a failure to perform under the41
gestational surrogacy contract does not give rise to the right to dissolution. The42 SB NO. 162
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parties' rights and responsibilities are otherwise governed by the rules of the1
Titles on Obligations in General and Conventional Obligations or Contracts.2
Comment - 20133
Before each in utero implantation, the gestational surrogate or either intended4
parent may terminate the gestational surrogacy contract by giving the timely notice5
provided for in R.S. 9:2720.9. After implantation, the remedy of contractual6
dissolution would be inequitable. If the intended parents failed to pay the7
agreed-upon expenses, for instance, allowing the gestational surrogate to take8
advantage of extra-judicial dissolution procedures would not be an appropriate9
remedy given the nature of the multiple and conflicting interests involved. The10
damages, specific performance, and other provisions of the Title on Conventional11
Obligations or Contracts, however, do apply to gestational surrogacy contracts.12
13
§2720.11. Termination of contract and effects of divorce, nullity, death14
A judgment of divorce or judicial declaration of nullity of a marriage15
between the intended parents, entered before in utero embryo transfer,16
terminates the gestational surrogacy contract. Upon the filing of a motion17
notifying the court of the judgment of divorce or declaration of nullity, the court18
shall issue an order vacating the Pre-Embryo Transfer Order. If an intended19
parent dies before in utero embryo transfer, the deceased individual is not a20
parent of the resulting child unless the child was born within three years of the21
death of the decedent and the deceased agreed in writing that if the in utero22
embryo transfer were to occur after death, the deceased individual would be a23
parent of the child and that the child would have all rights, including the24
capacity to inherit from the decedent.25
Comments - 201326
(a) This Section provides an effect for divorce or declaration of nullity only27
before in utero implantation. A judgment of divorce or judicial declaration of nullity28
of a marriage between the intended parents, entered after in utero implantation, does29
not terminate the gestational surrogacy contract. Custody of the resulting child30
would be determined by reference to the child custody provisions of Louisiana Civil31
Code Book I, Title V, Chapter 2, Section 3. Likewise, if an intended parent dies32
after in utero implantation, the tutorship provisions of the Louisiana Civil Code,33
found in Book I, Title VIII, would apply to provide for rules governing the person34
and property of the resulting minor child.35
36
(b) This Section tracks the policy and language of R.S. 9:391.1, which37
regulates children conceived after the death of a parent using the decedent's gametes.38
39
§2720.12. Effect of subsequent marriage40
After the issuance of a Pre-Embryo Transfer Order, subsequent41 SB NO. 162
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marriage of the gestational carrier does not affect the validity of a gestational1
surrogacy contract. The consent of the spouse is not required, and he is not a2
presumed father of the resulting child, notwithstanding any legal presumption3
to the contrary.4
Comment - 20135
If, after the original court order approves the gestational surrogacy contract,6
the gestational surrogate marries, the contract continues to be valid and the consent7
of her new spouse is not required. The new spouse is not a party to the original action8
and should not be the presumed legal father of the resulting child. Under this Part,9
the intended parents are the child's legal parents. The spouse of the gestational10
surrogate will not hold the status of a legal parent unless he is the genetic father or11
adopts the child.12
13
§2720.13. Post-Birth Order14
A. Upon birth of a child to a gestational carrier within three hundred15
days after in utero embryo transfer, the intended parents or their successors,16
the gestational carrier, or her spouse shall file a motion requesting issuance of17
a Post-Birth Order. The motion shall be accompanied by a certified copy of the18
child's original birth certificate and an affidavit executed by the intended19
parents containing an accounting of fees and charges paid or agreed to be paid20
by or on behalf of the intended parents in connection with the gestational21
surrogacy contract.22
B. If neither the intended parents, their successors, the gestational23
carrier, or her spouse file the motion described in Subsection A of this Section,24
the Department of Children and Family Services may file a motion notifying the25
court that a child has been born to the gestational carrier within three hundred26
days after in utero embryo transfer and the court shall set the motion for27
hearing.28
C. The court may order a hearing and, after finding that the parties29
have complied with this Part, shall issue a Post-Birth Order:30
(1) Confirming that the intended parents are the legal parents of the31
child and are financially responsible for the child.32
(2) If necessary, ordering that the child be surrendered to the intended33 SB NO. 162
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parents.1
(3) Directing that a new birth certificate be created and that the2
intended parents be listed on the birth certificate as the parents of the child3
pursuant to R.S. 40:32 et seq., and that the original birth certificate be sealed4
and subject to release or inspection only upon application to the court for good5
cause shown.6
§2720.14. DNA testing7
If the child is alleged not to be the child of the intended parents,8
supported by a sworn affidavit alleging specific facts which either tend to prove9
or deny filiation, the court shall order genetic testing to determine the parentage10
of the child. If the court finds after a contradictory hearing that the child is the11
genetic child of the carrier, the court shall issue an order recognizing her as a12
legal parent of the child. If any party refuses to submit to such tests, the court13
may resolve the question of filiation against such party or enforce its order if the14
rights of others and the interests of justice so require.15
Comments - 201316
(a) Such an allegation may be raised in a number of different proceedings,17
including a filiation, disavowal, or contestation action. See, e.g., C.C. Arts. 187,18
191, 197, 198. The prescriptive or peremptive period applicable to such an action19
will be determined by the applicable Civil Code Article for the particular form of20
action instituted.21
22
(b) DNA testing for paternity determinations is authorized and regulated by23
R.S. 9:396.24
25
§2720.15. Finality; time limitations26
A. A party to the gestational surrogacy contract may bring an action to27
annul a Post-Birth Order. However, except as otherwise provided in this Part,28
no action to annul a Post-Birth Order may be brought except on the grounds of29
fraud or duress.30
B. An action to annul a Post-Birth Order based upon a claim of fraud31
or duress perpetrated by:32
(1) Anyone other than an intended parent shall be brought within one33
year from the date of the signing of the final decree or mailing of the notice of34 SB NO. 162
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the judgment when required.1
(2) An intended parent shall be brought within two years from the date2
of the signing of the final decree or mailing of the notice of the judgment when3
required.4
Comment - 20135
The narrow grounds and relatively short window for nullifying a Post-Birth6
Order here are drawn, with some modifications, from Louisiana's grounds for7
annulling a final decree of adoption. There, as here, the parties' arrangement has8
been subject to substantial judicial scrutiny, and all parties involved have a special9
need for finality.10
11
Section 2. R.S. 40:34(B)(1)(a)(viii), (h)(v), (i), and (j) are hereby amended and12
reenacted to read as follows:13
§34. Vital records forms14
* * *15
B. The forms shall be printed and supplied or provided by electronic means by the16
state registrar and the required contents are:17
(1) Contents of birth certificate. The certificate of birth shall contain, as a minimum,18
the following items:19
(a) Full name of child.20
* * *21
(viii) In the case of a child born of a surrogate birth parent who is related by22
blood or affinity to a biological parent, as a result of an enforceable gestational23
surrogacy contract, as defined in R.S. 9:2720, the surname of the child's biological24
parents shall be the surname of the child.25
* * *26
(h)27
* * *28
(v) 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
surrogacy contract, as defined in R.S. 9:2720, the full name of the biological31
parent father who is proven to be the father by DNA testing shall be listed as the32 SB NO. 162
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father.1
(i) Maiden name of mother; however, if the child was born of a surrogate2
birth parent who is related by blood or affinity to a biological parent, as a result of3
an enforceable gestational surrogacy contract, as defined in R.S. 9:2720, the4
maiden name of the biological parent mother who is proven to be the mother by5
DNA testing shall be listed as the mother and the name of the surrogate birth parent6
is not required.7
(j) In the case of a child born of a surrogate birth parent who is related by8
blood or affinity to a biological parent, as a result of an enforceable gestational9
surrogacy contract, as defined in R.S. 9:2720, the biological parents proven to be10
the mother and father by DNA testing shall be considered the parents of the child.11
Section 3. R.S. 9:2713 is hereby repealed.12
Section 4. If and when this Act is finally passed by the legislature and enacted into13
law, the Louisiana State Law Institute is hereby authorized and directed to review the14
comments included with the enacted legislation and to correct such comments as it may15
deem necessary to accurately reflect the sections as enacted or amended by this Act.16
The original instrument was prepared by Julie J. Baxter. The following
digest, which does not constitute a part of the legislative instrument, was
prepared by J. Ashley Mitchell.
DIGEST
Gary Smith (SB 162)
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. SB NO. 162
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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-Embryo Transfer" prior to an in utero embryo
transfer.
Proposed law provides for situations when multiple attempts at in utero embryo transfer 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.
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 carrier 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) SB NO. 162
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Summary of Amendments Adopted by Senate
Committee Amendments Proposed by Senate Committee on Judiciary A to the
original bill
1. Added certain procedural requirements relative to criminal background
checks and fingerprint cards on each of the intended parents and the
gestational carrier and her spouse.
2. Changed from the term "implantation" to the term "embryo transfer".
3. Changed from the term "surrogate" to the term "carrier".
4. Changed reference in the definition of a gestational surrogacy from giving
birth to a child "by means of in vitro fertilization" to giving birth to a child
"conceived by in vitro fertilization"
5. Removed the requirement that, for a gestational surrogate to be paid for
reasonable living expenses for up to sixty days after the birth, she must, on
written advice of a physician, be unable to work or otherwise support herself
for medical reasons due to complications associated with the pregnancy or
birth of the child.
6. Deletes current law noting that "the name of the surrogate birth parent is not
required" on a birth certificate.
7. Adds a section authorizing and directing the Louisiana State Law Institute to
review the comments included with the enacted legislation and to correct
such comments as it may deem necessary to accurately reflect the sections
as enacted or amended by the Act.
Senate Floor Amendments to engrossed bill
1. Makes Legislative Bureau technical changes.