Gary Smith SB No. 162
Proposed law would have defined certain terms relative to surrogacy contracts. Would have
defined "intended parents" to mean a married couple consisting of a man and a woman who
contribute their gametes to be used in assisted reproduction, and who enter into an
enforceable gestational surrogacy contract with a gestational carrier pursuant to which they
will be the legal parents of the child resulting from that assisted reproduction.
Present law provides that a contract for surrogate motherhood shall be absolutely null and
shall be void and unenforceable as contrary to public policy. Defines a "contract for surrogate
motherhood" to be 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 would have removed a contract for "surrogate motherhood" from the
prohibition and provides that a contract for "genetic surrogacy" is absolutely null. Would
have defined "genetic surrogacy" to mean 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 would have provided for the enforcement of gestational surrogacy contracts.
Would have defined "gestational surrogacy" to mean 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 would have provided requirements for an enforceable gestational surrogacy
contract and would have provided for court approval of the contract. in advance of in utero
embryo transfer. Would have required that the gestational carrier comply with the following:
(1)Agree to become pregnant by means of in utero embryo transfer, using the gametes
of the intended parents, and to give birth to the resulting child.
(2)Agree to submit to reasonable medical evaluation and treatment during the term of
the pregnancy, to adhere to reasonable medical instructions about prenatal health, and
to execute medical records releases in favor of the intended parents.
(3)Certify that she has undergone at least two counseling sessions, separated by at least
thirty days, with a licensed clinical social worker, licensed psychologist, medical
psychologist, licensed psychiatrist, or licensed counselor, to discuss the proposed
surrogacy.
(4)Agree, along with her spouse if she is married, to relinquish all rights and duties as
the parents of a child born as a result of in utero embryo transfer.
Proposed law would have provided that the surrogacy contract require that the intended
parents comply with the following items:
(1)Acknowledge that the gestational carrier has sole authority with respect to medical
decision-making during the term of the pregnancy consistent with the rights of a
pregnant woman carrying her own biological child.
(2)Agree to accept custody of and to assume full parental rights and responsibilities for
the child immediately upon the child's birth, regardless of any impairment of the
child.
(3)Be recognized as the legal parents of the child.
Proposed law would have required that a proceeding to approve a gestational surrogacy
contract be maintained only if the following requirements are met:
(1)The gestational carrier and the intended parents have been domiciled in this state for
at least 180 days.
(2)The intended parents, the gestational carrier, and her spouse, if she is married, are all
parties to the proceeding.
(3)A copy of the proposed gestational surrogacy contract is attached to the motion
seeking court approval of the contract. (4)An independent board certified physician in obstetrics and gynecology or in
reproductive endocrinology, not affiliated with a surrogacy agency, deems the use of
a gestational carrier medically necessary to assist in reproduction.
Proposed law would have required that upon initiation of a summary proceeding to approve
a gestational surrogacy contract, the court to order a records check as to the intended parents
and the gestational carrier involving the following:
(1)A criminal history check from the La. Bureau of Criminal Identification and
Information.
(2)A check by the Department of Children and Family Services for any complaints of
child abuse or neglect in this or any other state.
(3)A check by the Judicial Administrator's Office of the La. Supreme Court as to any
orders entered into the La. Protective Orders Registry.
Proposed law would have required a court to hold a hearing within 60 days of initiation of
a proceeding to approve a gestational surrogacy contract and authorized the court to order
"Pre-Embryo Transfer Order" approving the contract and declaring that the intended parents
be recognized as the legal parents of a child born pursuant to the contract upon a finding of
the following:
(1)The required records check is completed and there is no risk of harm to the child.
(2)Provision has been made for all reasonable health care and legal expenses association
with the contract until the birth of the child including provisions for responsibility if
the contract is terminated.
(3)The gestational carrier is to receive no compensation other than for the following:
(a)Reasonable medical expenses for prenatal care and those medical and
hospital expenses incurred incident to the birth.
(b)Reasonable expenses incurred for mental health counseling services to the
carrier prior to the birth and up to six months after the birth.
(c)Reasonable living expenses of the carrier before the birth and for no more
than 60 days after the birth.
(d)Reasonable travel costs related to the pregnancy and delivery, court costs, and
attorney fees incurred by the carrier.
(e)That the parties understand the contract and give free consent to it.
Proposed law would have provided for situations when multiple attempts at in utero embryo
transfer are necessary.
Proposed law would have required that all court proceedings be heard by the judge in
chambers or in a closed hearing and for confidentially of the proceedings.
Proposed law would have provided for the continuing and exclusive jurisdiction of a court
for matters relative to a gestational surrogacy contract.
Proposed law would have provided for the termination of a gestational surrogacy contract
before each in utero embryo transfer by either party by filing a motion with the court and
giving notice of termination to all other parties. Would have prohibited the court, absent
timely notice of termination, from terminating a gestational surrogacy contract after issuance
of the Pre-Embryo Transfer Order except for good cause shown at a hearing. Would have
prohibited court termination of the contract after a successful in utero embryo transfer.
Proposed law would have provided for remedies for the failure to perform under a gestational
surrogacy contract.
Proposed law would have provided for the termination of a gestational surrogacy contract
and for the effects of divorce, nullity, and death on a gestational surrogacy contract.
Proposed law would have provided for the effect of a subsequent marriage of the gestational
carrier on a gestational surrogacy contract.
Proposed law would have provided issuance of a post-birth order upon birth of the child
within 300 days after in utero embryo transfer confirming the legal parents of the child, their
financial responsibility, and directing issuance of a new birth certificate with the intended parents listed on the birth certificate as the parents of the child and that the original birth
certificate be sealed and subject to release or inspection only upon application to the court
for good cause shown.
Proposed law would have provided for DNA testing when the child is alleged not to be the
child of the intended parents.
Proposed law would have provided for time limitations to annul a post-birth order and for
its 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 would have provided 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. Would have
eliminated the provision that the surrogate birth parent "is related by blood or affinity to a
biological parent" and allows use of the biological parent's surname. when the birth is "a
result of an enforceable gestational surrogacy contract".
Proposed law would have repealed present law R.S. 9:2713 that provides for a contract for
surrogate motherhood.
Would have become effective August 1, 2013.
(Proposed to amend R.S. 40:34(B)(1)(a)(viii), (h)(v), (i), and (j); add R.S. 9:2718-2720.15;
and repeal R.S. 9:2713)
VETO MESSAGE: "Senate Bill No. 162 by Senator Gary Smith has evoked serious
concern from various groups across the state such as Louisiana Family Forum, Louisiana
Conference of Catholic Bishops, the Hippocratic Resource, The Bioethics Defense Fund, and
the Center for Bioethics and Culture Network. Specifically, these groups reference the
potential that Gestational Surrogacy Contracts have to commercialize the use of surrogacy
as the bill in its current form permits "reasonable compensation."
Creating a state sanctioned regulatory structure for contracts pertaining to the birth of
children has a profound impact on the traditional beginnings of the family and is an
important topic worthy of heightened scrutiny and consensus. Given the range of opposition,
I am not satisfied that the questions and concerns regarding the implications of Gestational
Surrogacy Contracts have been sufficiently studied and thoroughly debated by the legislature
at this time.
For these reasons, I have vetoed Senate Bill No. 162 and hereby return it to the Senate."