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Regular Session, 2013 ENROLLED
SENATE BILL NO. 162
BY SENATOR GARY SMITH AND REPRESENTATIVES ADAMS, ANDERS,
ARNOLD, BERTHELOT, BILLIOT, WESLEY BISHOP, BROWN,
TIM BURNS, BURRELL, COX, DIXON, GISCLAIR, HARRISON,
HOLLIS, HONORE, HUNTER, KATRINA JACKSON, JAMES,
JEFFERSON, KLECKLEY, L EOPOLD, LOPINTO, MILLER,
MORENO, JIM MORRIS, PYLANT, REYNOLDS, RI TCHIE,
SCHEXNAYDER, ST. GERMAIN, STOKES, THIBAUT, THIERRY,
ALFRED WILLIAMS AND PATRICK WILLIAMS (On
Recommendation of the Louisiana State Law Institute)
Prefiled pursuant to Article III, Section 2(A)(4)(b)(i) of the Constitution of Louisiana.
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
a gestational surrogacy contract; to provide for the termination of a gestational18
surrogacy contract and for the effects of divorce, nullity, and death on a gestational19
surrogacy contract; to provide for the effect of a subsequent marriage of the20 SB NO. 162 ENROLLED
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gestational carrier on a gestational surrogacy contract; to provide for a post-birth1
order; to provide for DNA testing when the child is alleged not to be the child of the2
intended parents; to provide for time limitations and finality; and to provide for3
related matters.4
Be it enacted by the Legislature of Louisiana:5
Section 1. Chapter 1-C of Code Title IV, of Code Book III, of Title 9 of the6
Louisiana Revised Statutes of 1950, to be comprised of R.S. 9:2718 through 2720.15, is7
hereby enacted to read as follows:8
CHAPTER 1-C SURROGACY CONTRACTS9
PART I. DEFINITIONS10
§2718. Definition of terms11
As used in this Chapter, the following terms shall have the meanings12
ascribed to them in this Section unless otherwise provided for or unless the13
context otherwise indicates:14
(1) "Gamete" means either a sperm or an egg.15
(2) "Genetic surrogacy" means the process by which a woman attempts16
to carry and give birth to a child using her own gametes and either the gametes17
of a person who intends to parent the child or donor gametes, when there is an18
agreement to relinquish the custody of and all rights and obligations to the19
child.20
(3) "Gestational surrogacy" means the process by which a woman21
attempts to carry and give birth to a child conceived by in vitro fertilization22
using the gametes of the intended parents and to which the gestational carrier23
has made no genetic contribution.24
(4) "Gestational carrier" means a woman who agrees to engage in a25
gestational surrogacy.26
(5) "In utero embryo transfer" means the medical procedure whereby27
the genetic mother's egg is fertilized with the sperm of the genetic father, with28
the resulting embryo transferred into the uterus of the gestational carrier.29
(6) "Intended parents" means married persons who contribute their30 SB NO. 162 ENROLLED
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gametes to be used in assisted reproduction, and who enter into an enforceable1
gestational surrogacy contract, as defined in this Chapter, with a gestational2
carrier pursuant to which they will be the legal parents of the child resulting3
from that assisted reproduction.4
PART II. GENETIC SURROGACY5
§2713. 2719. Contract for surrogate motherhood genetic surrogacy; nullity6
A. A contract for surrogate motherhood as defined herein genetic surrogacy7
shall be absolutely null and shall be void and unenforceable as contrary to public8
policy.9
B. "Contract for surrogate motherhood" means any agreement whereby a10
person not married to the contributor of the sperm agrees for valuable consideration11
to be inseminated, to carry any resulting fetus to birth, and then to relinquish to the12
contributor of the sperm the custody and all rights and obligations to the child.13
Comments - 201314
(a) This Section continues the longstanding disapproval of contracts for15
genetic surrogacy, which began in 1987 in the wake of the controversial "Baby M"16
case. See In re Baby M, 537 A.2d 1227 (N.J. 1988). A surrogacy arrangement that17
would allow a mother to agree to relinquish her biological child in advance of its18
birth violates the public policy of this state and is, therefore, unenforceable, whether19
the contract is gratuitous or onerous.20
21
(b) If individuals choose to ignore the provisions of this Chapter and engage22
in prohibited forms of surrogacy, this Chapter provides them no legal protection.23
Parentage, custody, and other questions will be determined in accordance with the24
general provisions of Louisiana law. See, e.g., C.C. Art. 184.25
26
PART III. GESTATIONAL SURROGACY27
§2720. Enforceability of gestational surrogacy contract28
A. In accordance with the requirements of this Part, a gestational29
carrier, her spouse if she is married, and the intended parents may enter into30
a written contract, known as a gestational surrogacy contract.31
B. A gestational surrogacy contract is enforceable only if approved by32
a court in advance of in utero embryo transfer, as provided in this Part.33
Comment - 201334
Subsection B makes it clear that entering into a gestational surrogacy contract35
is a significant legal act that must be approved by a court, just as an adoption of a36
minor must be judicially approved. This Part provides for state involvement, through37 SB NO. 162 ENROLLED
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judicial oversight, of the gestational surrogacy contract before, during, and after the1
assisted reproduction process. The purpose of early involvement is to ensure that the2
parties are appropriate for a gestational surrogacy contract, that they understand the3
consequences of what they are undertaking, and that the best interests of a child born4
of the gestational surrogacy contract are considered before the arrangement is5
approved. Parties who enter into a gestational surrogacy contract not meeting the6
requirements of this Part may not have their contract judicially approved; in such7
cases, the law provides no rights or remedies governing their disputes.8
9
§2720.1. Parties to a gestational surrogacy contract10
A gestational carrier shall, at the time the gestational surrogacy contract11
is executed:12
(1) Be at least twenty-five years of age.13
(2) Have given birth to at least one child.14
§2720.2. Contractual requirements15
A. In an enforceable gestational surrogacy contract, the gestational16
carrier shall:17
(1) Agree to become pregnant by means of in utero embryo transfer,18
using the gametes of the intended parents, and to give birth to the resulting19
child.20
(2) Agree to submit to reasonable medical evaluation and treatment21
during the term of the pregnancy, to adhere to reasonable medical instructions22
about prenatal health, and to execute medical records releases under R.S.23
40:1299.96 in favor of the intended parents.24
(3) Certify that she has undergone at least two counseling sessions,25
separated by at least thirty days, with a licensed clinical social worker, licensed26
psychologist, medical psychologist, licensed psychiatrist, or licensed counselor,27
to discuss the proposed surrogacy.28
(4) Agree, along with her spouse if she is married, to relinquish all rights29
and duties as the parents of a child born as a result of in utero embryo transfer.30
B. In an enforceable gestational surrogacy contract, the intended31
parents shall:32
(1) Acknowledge that the gestational carrier has sole authority with33
respect to medical decision-making during the term of the pregnancy consistent34 SB NO. 162 ENROLLED
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with the rights of a pregnant woman carrying her own biological child.1
(2) Agree to accept custody of and to assume full parental rights and2
responsibilities for the child immediately upon the child's birth, regardless of3
any impairment of the child.4
(3) Be recognized as the legal parents of the child.5
C. The parties shall agree upon a preliminary estimate of reasonable6
expenses and their allocation in accordance with R.S. 9:2720.5.7
Comments - 20138
(a) The gestational surrogacy contract regulated under this Part is a contract9
subject to the provisions governing Conventional Obligations or Contracts in Title10
IV, Book III of the Louisiana Civil Code. 11
12
(b) The contract must provide that the intended parents will be the parents13
of any child born pursuant to the contract while all others involved relinquish all14
parental rights and duties. In accordance with Paragraph A(4), the gestational15
surrogate is relieved of any legal responsibility for the child.16
17
(c) Paragraph B(1) is not intended to modify current law regarding a18
pregnant woman's prenatal care. A pregnant gestational surrogate's medical rights19
are consistent with the rights of a pregnant woman carrying her own biological child.20
21
(d) In requiring the parties to estimate expenses during the contracting22
process and to have this agreed-upon financial arrangement approved by the court,23
this Chapter mirrors the financial provisions of Louisiana adoption law. Mothers24
who relinquish their children for adoption in this state may not financially profit25
from the transaction, and are limited to recovery of actual and reasonable expenses.26
This and subsequent provisions of this Chapter subject contracts for gestational27
surrogacy to the same limitations on financial remuneration. See, e.g., Ch.C. Art.28
1223.29
30
(e) This Section speaks only to what must be provided for in the gestational31
surrogacy contract. There are additional requirements that must be met before a court32
may approve a gestational surrogacy agreement. See, e.g., R.S. 9:2720.1 (detailing33
requirements of eligibility for the gestational surrogate) and R.S. 9:2720.3 (setting34
out residence and other procedural requirements).35
36
§2720.3. Proceeding to approve surrogacy contract37
A. Prior to in utero embryo transfer, the intended parents or the38
gestational carrier and her husband, if she is married, may initiate a summary39
proceeding in the court exercising jurisdiction over the adoption of minors40
where the intended parents or the gestational carrier reside, seeking to have the41
court approve a gestational surrogacy contract.42
B. A proceeding to approve a gestational surrogacy contract shall be43
maintained only if:44 SB NO. 162 ENROLLED
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(1) The gestational carrier and the intended parents have been domiciled1
in this State for at least one hundred eighty days.2
(2) The intended parents, the gestational carrier, and her spouse, if she3
is married, are all parties to the proceeding.4
(3) A copy of the proposed gestational surrogacy contract is attached to5
the motion.6
(4) An independent board certified physician in obstetrics and7
gynecology or in reproductive endocrinology, not affiliated with a surrogacy8
agency, deems the use of a gestational carrier medically necessary to assist in9
reproduction.10
Comments - 201311
(a) A proceeding to approve a gestational surrogacy contract must be12
initiated in the court exercising jurisdiction over the adoption of minors because of13
the similarity between these proceedings. Depending on the parish, the appropriate14
court may include a family court, juvenile court, district court, or civil district court.15
(b) To discourage forum shopping, Paragraph (B)(1) requires that the16
proceeding be initiated in Louisiana if the intended parents and the gestational17
surrogate have been residents for at least one hundred and eighty days.18
19
§2720.4. Institution of records check20
A. Upon the initiation of the summary proceeding, the court shall:21
(1) Order and be entitled to the criminal history record and22
identification files of the Louisiana Bureau of Criminal Identification and23
Information on each of the intended parents and the gestational carrier and her24
spouse, if she is married, as a means of performing background checks on those25
individuals. The bureau shall, upon request and after receipt of fingerprint26
cards and other identifying information from the court, make available to the27
court information contained in the bureau's criminal history record and28
identification files, which pertains to each of the intended parents and the29
gestational carrier and her spouse, if she is married. In addition, in order to30
determine an applicant's suitability, the fingerprints shall be forwarded by the31
bureau to the Federal Bureau of Investigation for a national criminal history32
record check. The bureau shall charge a processing fee as provided in R.S.33
15:587(B)(1).34 SB NO. 162 ENROLLED
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(2) Order that the Department of Children and Family Services conduct1
a records check for validated complaints of child abuse or neglect in this or any2
other state in which either of the intended parents and the gestational carrier3
and her spouse, if she is married, has been domiciled since becoming a major.4
(3) Order that the Judicial Administrator's Office of the Louisiana5
Supreme Court conduct a records check for court orders entered into the6
Louisiana Protective Order Registry involving each of the intended parents and7
the gestational carrier and her spouse, if she is married.8
B. Each order shall state the full name, date of birth, social security9
number, and former and current state of domicile since becoming a major of10
each subject of the check.11
C. The sheriff or the office of state police, Louisiana Bureau of Criminal12
Identification and Information, the Department of Children and Family13
Services, and the Judicial Administrator's Office of the Louisiana Supreme14
Court shall accord priority to these orders and shall provide a certificate to the15
court indicating all information discovered, or that no information has been16
found.17
§2720.5. Pre-Embryo Transfer Order18
A. Within sixty days of the initiation of a proceeding to approve a19
gestational surrogacy contract, the court shall set the matter for hearing, and20
after the hearing may issue an order, known as the Pre-Embryo Transfer21
Order, approving the gestational surrogacy contract and declaring that the22
intended parents shall be recognized as the legal parents of a child born23
pursuant to the gestational surrogacy contract.24
B. The court shall issue a Pre-Embryo Transfer Order upon finding25
that:26
(1) The requirements of R.S. 9:2720-2720.3 have been satisfied and the27
reports of criminal records, validated complaints of child abuse or neglect, and28
Louisiana Protective Order Registry checks show that there is no risk of harm29
to the child.30 SB NO. 162 ENROLLED
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(2) Provisions have been made for all reasonable health care and legal1
expenses associated with the gestational surrogacy contract until the birth of the2
child, including responsibility for those expenses if the contract is terminated.3
(3) The gestational carrier will receive no compensation other than:4
(a) Reasonable medical expenses, including hospital, testing, nursing,5
midwifery, pharmaceutical, travel, or other similar expenses, incurred by the6
gestational carrier for prenatal care and those medical and hospital expenses7
incurred incident to the birth.8
(b) Reasonable expenses incurred for mental health counseling services9
provided to the gestational carrier prior to the birth and up to six months after10
birth.11
(c) Reasonable living expenses incurred by the gestational carrier before12
the birth of the child and for no more than sixty days after the birth.13
(d) Reasonable travel costs related to the pregnancy and delivery, court14
costs, and attorney fees incurred by the gestational carrier.15
(4) The parties understand the contract and give free consent.16
Comments - 201317
(a) This pre-implantation authorization process for a gestational surrogacy18
contract is roughly analogous to prevailing adoption procedures. Just as adoption19
contemplates the transfer of parentage of a child from the birth parents to the20
adoptive parents, a gestational surrogacy contract involves the transfer from the21
gestational mother to the intended parents. This Chapter is designed to protect the22
interests of the child to be born under the gestational surrogacy contract as well as23
the interests of the gestational surrogate and the intended parents. 24
25
(b) This Section seeks to protect the interests of the child in several ways.26
The major protection of the child is the authorization procedure itself. This Chapter27
requires closely supervised gestational surrogacy arrangements to ensure the security28
and well-being of the resulting child. Once a proceeding has been initiated,29
Subsection A permits requires the court to approve a gestational surrogacy contract30
only if the requirements of this Part are met. If it approves, the court must declare31
that the intended parents will be the parents of any child born pursuant to, and during32
the term of, the contract.33
34
(c) The expense provisions of this Section largely track those applicable to35
allowable expenses in connection with the adoption of minors, with some36
modifications. See Ch.C. Art. 1223.37
38
§2720.6. Multiple embryo transfer attempts39
If there are multiple attempts at in utero embryo transfer, the gestational40 SB NO. 162 ENROLLED
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surrogacy contract and the Pre-Embryo Transfer Order shall continue in full1
force and effect in accordance with the parties' agreement until terminated2
under R.S. 9:2720.9 or 2720.11, or until a live birth occurs pursuant to the3
gestational surrogacy contract.4
§2720.7. Confidentiality5
All proceedings governed by this Chapter shall be heard by the judge in6
chambers or in a closed hearing, and no one shall be admitted to the hearings7
except the parties in interest, their attorneys, and officers of the court. The8
court, in its discretion, may grant the request of a petitioner to permit others to9
be present at the hearing. The court records of these proceedings and the10
identities of the parties to a gestational surrogacy contract shall be sealed and11
are subject to disclosure, release or inspection only upon application to the12
court and in conformity with the applicable requirements of confidentiality13
applicable to adoptions in the Children's Code.14
§2720.8. Continuing and exclusive jurisdiction15
Subject to the jurisdictional requirements of the Uniform Child Custody16
Jurisdiction and Enforcement Act, the court having jurisdiction over the17
proceeding to approve a gestational surrogacy contract pursuant to this Part18
shall have exclusive, continuing jurisdiction of all matters arising out of the19
gestational surrogacy contract.20
Comment - 201321
This Section is designed to minimize the possibility of parallel litigation in22
different states and the consequent risk of kidnapping for strategic purposes.23
24
§2720.9. Termination of contract by notice25
A. Before each in utero embryo transfer, the gestational carrier or either26
of the intended parents may terminate the gestational surrogacy contract by27
filing a motion with the court giving notice of termination and serving all other28
parties with the motion. Upon filing of the motion, the court shall issue an order29
vacating the Pre-Embryo Transfer Order.30
B. Neither a gestational carrier nor her spouse, if she is married, is liable31 SB NO. 162 ENROLLED
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to the intended parents for terminating a gestational surrogacy contract1
pursuant to this Section.2
C. Absent timely notice of termination by an intended parent or the3
gestational carrier, no court shall terminate a gestational surrogacy contract4
after issuance of a valid Pre-Embryo Transfer Order except for good cause5
shown after a hearing. No court shall terminate a gestational surrogacy contract6
after a successful in utero embryo transfer.7
Comments - 20138
(a) Subsection A permits a party to terminate a gestational surrogacy contract9
after the Pre-Implantation Order by canceling the arrangement before in utero10
implantation has occurred. This provides for cancellation during a time when the11
interests of the parties would not be unduly prejudiced by termination. The intended12
parents certainly have an expectation interest during this time, but the nature of this13
interest is little different from that which they would have while they were14
attempting to create a pregnancy through traditional means. 15
(b) It is certainly possible that if the gestational surrogate terminates the16
gestational surrogacy contract after issuance of a Pre-Implantation Order, the17
intended parents may have already expended substantial sums to undergo the18
fertilization process. Fertilization costs may not be recovered from the gestational19
surrogate, however, as any resulting embryos are genetically related to the intended20
parents, and could be used by the intended parents in future attempts at assisted21
reproduction.22
(c) Once a human embryo exists, it is subject to the rules regulating human23
embryos in R.S. 9:121-133.24
25
(d) The use of the word "each" in Subsection A indicates that the possibility26
of termination by notice remains before each implantation attempt, even if there are27
multiple attempts.28
29
(e) Good cause may include a finding of some change in circumstances that30
would have prevented the court from issuing the Pre-Implantation Order. A change31
in the results of criminal history, child abuse, or domestic violence registry checks32
after issuance of the Pre-Implantation Order, for instance, may provide good cause33
for termination. 34
35
§2720.10. Remedies36
After in utero embryo transfer, a failure to perform under the37
gestational surrogacy contract does not give rise to the right to dissolution. The38
parties' rights and responsibilities are otherwise governed by the rules of the39
Titles on Obligations in General and Conventional Obligations or Contracts.40
Comment - 201341
Before each in utero implantation, the gestational surrogate or either intended42
parent may terminate the gestational surrogacy contract by giving the timely notice43 SB NO. 162 ENROLLED
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provided for in R.S. 9:2720.9. After implantation, the remedy of contractual1
dissolution would be inequitable. If the intended parents failed to pay the2
agreed-upon expenses, for instance, allowing the gestational surrogate to take3
advantage of extra-judicial dissolution procedures would not be an appropriate4
remedy given the nature of the multiple and conflicting interests involved. The5
damages, specific performance, and other provisions of the Title on Conventional6
Obligations or Contracts, however, do apply to gestational surrogacy contracts.7
8
§2720.11. Termination of contract and effects of divorce, nullity, death9
A judgment of divorce or judicial declaration of nullity of a marriage10
between the intended parents, entered before in utero embryo transfer,11
terminates the gestational surrogacy contract. Upon the filing of a motion12
notifying the court of the judgment of divorce or declaration of nullity, the court13
shall issue an order vacating the Pre-Embryo Transfer Order. If an intended14
parent dies before in utero embryo transfer, the deceased individual is not a15
parent of the resulting child unless the child was born within three years of the16
death of the decedent and the deceased agreed in writing that if the in utero17
embryo transfer were to occur after death, the deceased individual would be a18
parent of the child and that the child would have all rights, including the19
capacity to inherit from the decedent.20
Comments - 201321
(a) This Section provides an effect for divorce or declaration of nullity only22
before in utero implantation. A judgment of divorce or judicial declaration of nullity23
of a marriage between the intended parents, entered after in utero implantation, does24
not terminate the gestational surrogacy contract. Custody of the resulting child25
would be determined by reference to the child custody provisions of Louisiana Civil26
Code Book I, Title V, Chapter 2, Section 3. Likewise, if an intended parent dies27
after in utero implantation, the tutorship provisions of the Louisiana Civil Code,28
found in Book I, Title VIII, would apply to provide for rules governing the person29
and property of the resulting minor child.30
31
(b) This Section tracks the policy and language of R.S. 9:391.1, which32
regulates children conceived after the death of a parent using the decedent's gametes.33
34
§2720.12. Effect of subsequent marriage35
After the issuance of a Pre-Embryo Transfer Order, subsequent36
marriage of the gestational carrier does not affect the validity of a gestational37
surrogacy contract. The consent of the spouse is not required, and he is not a38
presumed father of the resulting child, notwithstanding any legal presumption39
to the contrary.40 SB NO. 162 ENROLLED
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Comment - 20131
If, after the original court order approves the gestational surrogacy contract,2
the gestational surrogate marries, the contract continues to be valid and the consent3
of her new spouse is not required. The new spouse is not a party to the original action4
and should not be the presumed legal father of the resulting child. Under this Part,5
the intended parents are the child's legal parents. The spouse of the gestational6
surrogate will not hold the status of a legal parent unless he is the genetic father or7
adopts the child.8
9
§2720.13. Post-Birth Order10
A. Upon birth of a child to a gestational carrier within three hundred11
days after in utero embryo transfer, the intended parents or their successors,12
the gestational carrier, or her spouse shall file a motion requesting issuance of13
a Post-Birth Order. The motion shall be accompanied by a certified copy of the14
child's original birth certificate and an affidavit executed by the intended15
parents containing an accounting of fees and charges paid or agreed to be paid16
by or on behalf of the intended parents in connection with the gestational17
surrogacy contract.18
B. If neither the intended parents, their successors, the gestational19
carrier, or her spouse file the motion described in Subsection A of this Section,20
the Department of Children and Family Services may file a motion notifying the21
court that a child has been born to the gestational carrier within three hundred22
days after in utero embryo transfer and the court shall set the motion for23
hearing.24
C. The court may order a hearing and, after finding that the parties25
have complied with this Part, shall issue a Post-Birth Order:26
(1) Confirming that the intended parents are the legal parents of the27
child and are financially responsible for the child.28
(2) If necessary, ordering that the child be surrendered to the intended29
parents.30
(3) Directing that a new birth certificate be created and that the31
intended parents be listed on the birth certificate as the parents of the child32
pursuant to R.S. 40:32 et seq., and that the original birth certificate be sealed33
and subject to release or inspection only upon application to the court for good34 SB NO. 162 ENROLLED
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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 carrier, the court shall issue an order recognizing her as a7
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 perpetrated by:27
(1) Anyone other than an intended parent shall be brought within one28
year from the date of the signing of the final decree or mailing of the notice of29
the judgment when required.30
(2) An intended parent shall be brought within two years from the date31
of the signing of the final decree or mailing of the notice of the judgment when32
required.33
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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
DNA testing shall be listed as the mother and the name of the surrogate birth parent33 SB NO. 162 ENROLLED
Page 15 of 15
Coding: Words which are struck through are deletions from existing law;
words in boldface type and underscored are additions.
is not required.1
(j) In the case of a child born of a surrogate birth parent who is related by2
blood or affinity to a biological parent, as a result of an enforceable gestational3
surrogacy contract, as defined in R.S. 9:2720, the biological parents proven to be4
the mother and father by DNA testing shall be considered the parents of the child.5
Section 3. R.S. 9:2713 is hereby repealed.6
Section 4. If and when this Act is finally passed by the legislature and enacted into7
law, the Louisiana State Law Institute is hereby authorized and directed to review the8
comments included with the enacted legislation and to correct such comments as it may9
deem necessary to accurately reflect the sections as enacted or amended by this Act.10
PRESIDENT OF THE SENATE
SPEAKER OF THE HOUSE OF REPRESENTATIVES
GOVERNOR OF THE STATE OF LOUISIANA
APPROVED: