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Regular Session, 2014
HOUSE BILL NO. 187
BY REPRESENTATIVES LOPINTO, ADAMS, ARNOLD, BADON, BERTHELOT,
WESLEY BISHOP, BROADWATER, BROSSETT, DOVE, GAROFALO,
HUNTER, JAMES, KLECKLEY, MORENO, SCHEXNAYDER, TALBOT, AND
WOODRUFF AND SENATOR GARY SMI TH
CHILDREN: Provides for surrogacy regulation in Louisiana
AN ACT1
To amend and reenact R.S. 14:286(D), R.S. 40:34(B)(1)(a)(viii), (h)(v), (i), and (j), and R.S.2
44:4.1(B)(26), to enact Chapter 1-C of Code Title IV of Code Book III of Title 9 of3
the Louisiana Revised Statutes of 1950, to be comprised of R.S. 9:2718 through4
2720.15, R.S. 14:286(E), and Part VII of Chapter 2 of Title 40 of the Louisiana5
Revised Statutes of 1950, to be comprised of R.S. 40:93 through 97, and to repeal6
R.S. 9:2713, relative to surrogacy; to provide for amendments to birth certificates;7
to provide for definitions relative to surrogacy contracts; to provide for genetic8
surrogacy contracts; to provide for the enforceability of gestational surrogacy9
contracts; to provide for the parties to a gestational surrogacy contract; to provide for10
contractual requirements for a gestational surrogacy contract; to provide for a11
proceeding to approve a gestational surrogacy contract; to provide for the check of12
the criminal records of the parties to a gestational surrogacy contract; to provide for13
an order preceding embryo transfer relative to a gestational surrogacy contract; to14
provide for matters relative to multiple attempts at in utero embryo transfer; to15
provide for confidentiality of the proceedings relative to a gestational surrogacy16
contract; to provide for continuing and exclusive jurisdiction to the proceedings17
relative to a gestational surrogacy contract; to provide for the termination of a18
gestational surrogacy contract by notice; to provide for remedies for the failure to19 HLS 14RS-813 REENGROSSED
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perform under a gestational surrogacy contract; to provide for the termination of a1
gestational surrogacy contract and for the effects of divorce, nullity, and death on a2
gestational surrogacy contract; to provide for the effect of a subsequent marriage of3
the gestational mother 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; to prohibit certain acts6
relative to a gestational surrogacy contract occurring on or after the effective date;7
to provide for data collection; and to provide for related matters.8
Be it enacted by the Legislature of Louisiana:9
Section 1. Chapter 1-C of Code Title IV of Code Book III of Title 9 of the10
Louisiana Revised Statutes of 1950, comprised of R.S. 9:2718 through 2720.15, is hereby11
enacted to read as follows:12
CHAPTER 1-C. SURROGACY CONTRACTS13
PART I. DEFINITIONS14
§2718. Definition of terms15
As used in this Chapter, the following terms shall have the meanings ascribed16
to them in this Section unless otherwise provided for or unless the context otherwise17
indicates:18
(1) "Compensation" means a payment of money, objects, services, or19
anything else having monetary value. Compensation shall not include20
reimbursement of actual expenses, as provided for in R.S. 9:2720.5(B)(3), to the21
gestational mother or payment for goods or services incurred by the intended parents22
as a result of the pregnancy and that would not have been incurred but for the23
pregnancy.24
(2) "Gamete" means either a sperm or an egg.25
(3) "Genetic surrogacy" means the process by which a woman attempts to26
carry and give birth to a child using her own gametes and either the gametes of a27
person who intends to parent the child or donor gametes, when there is an agreement28
to relinquish the custody of and all rights and obligations to the child.29 HLS 14RS-813 REENGROSSED
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(4) "Gestational surrogacy" means the process by which a woman attempts1
to carry and give birth to a child born as a result of in utero transfer of a human2
embryo who has no genetic contribution from the gestational mother.3
(5) "Gestational mother" means a woman who agrees to engage in a4
gestational surrogacy.5
(6) "In utero embryo transfer" means the medical procedure whereby the6
genetic mother's egg is fertilized with the sperm of the genetic father, with the7
resulting embryo transferred into the uterus of the gestational mother.8
(7) "Intended parents" means a man and a woman who are married to each9
other in accordance with Louisiana law who contribute their gametes and who enter10
into an enforceable gestational surrogacy contract, as defined in this Chapter, with11
a gestational mother pursuant to which they will be the legal parents of the child12
resulting from that assisted reproduction.13
PART II. GENETIC SURROGACY14
§2719. Contract for genetic surrogacy; nullity15
A contract for genetic surrogacy shall be absolutely null.16
PART III. GESTATIONAL SURROGACY17
§2720. Enforceability of gestational surrogacy contract18
A. In accordance with the requirements of this Part, an agreement to be19
known as a gestational surrogacy contract is enforceable only if it is in writing and20
signed by the gestational mother, her spouse if she is married, and both of the21
intended parents.22
B. A gestational surrogacy contract is enforceable only if approved by a23
court in advance of in utero embryo transfer, and is in accordance with all of the24
requirements of this Part.25
C. No person shall enter into a gestational surrogacy contract for26
compensation as defined in R.S. 9:2718 or that is not in compliance with all of the27
requirements of this Part. Any such contract executed in the state of Louisiana or28 HLS 14RS-813 REENGROSSED
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any other state shall be absolutely null and unenforceable in the state of Louisiana1
as contrary to public policy.2
D. No person shall enter into a gestational surrogacy contract that requires3
the gestational mother to consent to terminate a pregnancy resulting from in utero4
embryo transfer for any reason, including a prenatal diagnosis of an actual or5
potential disability, impairment, genetic variation, or any other health condition or6
a discrimination based on gender, or for the purposes of the reduction of multiple7
fetuses. Any such provision in a contract executed in the state of Louisiana or any8
other state shall be absolutely null and unenforceable in the state of Louisiana as9
contrary to public policy.10
§2720.1. Parties to a gestational surrogacy contract11
A gestational mother shall, at the time the gestational surrogacy contract is12
executed:13
(1) Be at least twenty-five years of age, and no older than thirty-five years14
of age.15
(2) Have given birth to at least one child.16
§2720.2. Contractual requirements17
A. In an enforceable gestational surrogacy contract, the gestational mother18
shall do all of the following:19
(1) Agree to become pregnant by means of in utero embryo transfer, using20
the gametes of the intended parents, and to give birth to the resulting child.21
(2) Agree to reasonable medical evaluation and treatment during the term of22
the pregnancy, to adhere to reasonable medical instructions about prenatal health,23
and to execute medical records releases under R.S. 40:1299.96 in favor of the24
intended parents.25
(3) Certify that prior to executing the gestational surrogacy contract she has26
undergone at least two counseling sessions, separated by at least thirty days, with a27
licensed clinical social worker, licensed psychologist, medical psychologist, licensed28
psychiatrist, or licensed counselor, to discuss the proposed surrogacy.29 HLS 14RS-813 REENGROSSED
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(4) Certify, along with her spouse if she is married, that she will relinquish1
all rights and duties as the parents of a child born as a result of in utero embryo2
transfer.3
B. In an enforceable gestational surrogacy contract, the intended parents4
shall be a man and woman who are married to each other in accordance with5
Louisiana law and shall certify in writing that they do all of the following:6
(1) Acknowledge that the gestational mother has sole authority with respect7
to medical decision-making during the term of the pregnancy consistent with the8
rights of a pregnant woman carrying her own biological child.9
(2) Agree to accept custody of and to assume full parental rights and10
responsibilities for the child immediately upon the child's birth, regardless of any11
impairment of the child.12
(3) Be recognized as the legal parents of the child.13
C. The gestational surrogacy contract shall include a preliminary estimate14
of anticipated expenses and their allocation in accordance with R.S. 9:2720.5.15
§2720.3. Proceeding to approve surrogacy contract16
A. Prior to in utero embryo transfer, the intended parents or the gestational17
mother and her husband, if she is married, may initiate a summary proceeding in the18
court exercising jurisdiction over the adoption of minors where the intended parents19
or the gestational mother reside, seeking to have the court approve a gestational20
surrogacy contract.21
B. A proceeding to approve a gestational surrogacy contract shall be22
maintained only if all of the following occur:23
(1) The gestational mother and each of the intended parents have been24
domiciled in this state for at least one hundred eighty days.25
(2) The intended parents, the gestational mother, and her spouse, if she is26
married, are all parties to the proceeding.27
(3) A copy of the proposed gestational surrogacy contract is attached to the28
motion.29 HLS 14RS-813 REENGROSSED
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(4) An independent board certified physician in obstetrics and gynecology1
or in reproductive endocrinology,who has medically treated the intended mother over2
a period of time such that the physician is competent to reach medical conclusions3
about the intended mother's medical condition and submits a signed affidavit4
certifying that in utero embryo transfer with a gestational mother is medically5
necessary to assist in reproduction.6
(5) For purposes of this Section, "medically necessary" means that the7
intended mother has been diagnosed to be infertile, or to have a physical condition8
such that a pregnancy would create serious risk of death or substantial and9
irreversible impairment of a major bodily function beyond the risk customary to10
pregnancy and child birth.11
§2720.4. Institution of records check12
A. Upon the initiation of the summary proceeding, the court shall do all of13
the following:14
(1) Order and be entitled to the criminal history record and identification files15
of the Louisiana Bureau of Criminal Identification and Information on each of the16
intended parents and the gestational mother and her spouse, if she is married, as a17
means of performing background checks on those individuals. The bureau shall,18
upon request and after receipt of fingerprint cards and other identifying information19
from the court, make available to the court information contained in the bureau's20
criminal history record and identification files, which pertains to each of the intended21
parents and the gestational mother and her spouse, if she is married. In addition, in22
order to determine an applicant's suitability, the fingerprints shall be forwarded by23
the bureau to the Federal Bureau of Investigation for a national criminal history24
record check. The bureau shall charge a processing fee as provided in R.S.25
15:587(B)(1).26
(2) Order that the Department of Children and Family Services conduct a27
records check for validated complaints of child abuse or neglect in this or any other28 HLS 14RS-813 REENGROSSED
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state in which either of the intended parents and the gestational mother and her1
spouse, if she is married, has been domiciled since becoming a major.2
(3) Order that the Judicial Administrator's Office of the Louisiana Supreme3
Court conduct a records check for court orders entered into the Louisiana Protective4
Order Registry involving each of the intended parents and the gestational mother and5
her spouse, if she is married.6
B. Each order shall state the full name, date of birth, social security number,7
and former and current state of domicile since becoming a major of each subject of8
the check.9
C. The sheriff or the office of state police, Louisiana Bureau of Criminal10
Identification and Information, the Department of Children and Family Services, and11
the Judicial Administrator's Office of the Louisiana Supreme Court shall accord12
priority to these orders and shall provide a certificate to the court indicating all13
information discovered, or that no information has been found.14
§2720.5. Order Preceding Embryo Transfer15
A. Within sixty days of the initiation of a proceeding to approve a gestational16
surrogacy contract, the court shall set the matter for hearing, and after the hearing17
may issue an order, known as the Order Preceding Embryo Transfer, approving the18
gestational surrogacy contract and declaring that the intended parents shall be19
recognized as the legal parents of a child born pursuant to the gestational surrogacy20
contract.21
B. The court shall issue an Order Preceding Embryo Transfer upon finding22
that all of the following have occurred:23
(1) The requirements of R.S. 9:2720-2720.3 have been satisfied and the24
reports of criminal records, validated complaints of child abuse or neglect, and25
Louisiana Protective Order Registry checks show that there is no risk of harm to the26
child or the gestational mother.27 HLS 14RS-813 REENGROSSED
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(2) Provisions have been made for all reasonable healthcare 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 mother will receive no compensation other than:4
(a) Actual medical expenses, including hospital, testing, nursing, midwifery,5
pharmaceutical, travel, or other similar expenses, incurred by the gestational mother6
for prenatal care and those medical and hospital expenses incurred incident to the7
birth.8
(b) Actual expenses incurred for mental health counseling services provided9
to the gestational mother prior to the birth and up to six months after birth.10
(c) Actual lost wages of the gestational mother, not covered under a11
disability insurance policy, when bed rest has been prescribed for the gestational12
mother for some maternal or fetal complication of pregnancy and the gestational13
mother, who is employed, is unable to work during the prescribed period of bed rest.14
(d) Actual travel costs related to the pregnancy and delivery, court costs, and15
attorney fees incurred by the gestational mother.16
(e) Payment of a judicially sanctioned settlement or judgment rendered in17
favor of the gestational mother or her heirs as a result of her death, loss of18
reproductive organs or capability, or any other health complication caused by the in19
utero embryo transfer, pregnancy or resulting childbirth, miscarriage, or termination20
of pregnancy.21
(4) The parties understand the contract and freely give consent.22
§2720.6. Multiple embryo transfer attempts23
If there are multiple attempts at in utero embryo transfer, the gestational24
surrogacy contract and the Order Preceding Embryo Transfer shall continue in full25
force and effect in accordance with the parties' agreement until terminated under R.S.26
9:2720.9 or 2720.11, or until a live birth occurs pursuant to the gestational surrogacy27
contract.28 HLS 14RS-813 REENGROSSED
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§2720.7. Confidentiality1
All proceedings governed by this Chapter shall be heard by the judge in2
chambers or in a closed hearing, and no one shall be admitted to the hearings except3
the parties in interest, their attorneys, and officers of the court. The court, in its4
discretion, may grant the request of a petitioner to permit others to be present at the5
hearing. The court records of these proceedings and the identities of the parties to6
a gestational surrogacy contract shall be sealed and are subject to disclosure, release,7
or inspection only upon application to the court and in conformity with the8
applicable requirements of confidentiality applicable to adoptions in the Children's9
Code.10
§2720.8. Continuing and exclusive jurisdiction11
Subject to the jurisdictional requirements of the Uniform Child Custody12
Jurisdiction and Enforcement Act, the court having jurisdiction over the proceeding13
to approve a gestational surrogacy contract pursuant to this Part shall have exclusive,14
continuing jurisdiction of all matters arising out of the gestational surrogacy contract.15
§2720.9. Termination of contract by notice16
A. Before each in utero embryo transfer, the gestational mother or either of17
the intended parents may terminate the gestational surrogacy contract by filing a18
motion with the court giving notice of termination and serving all other parties with19
the motion. Upon filing of the motion, the court shall issue an order vacating the20
Order Preceding Embryo Transfer.21
B. Neither a gestational mother nor her spouse, if she is married, is liable to22
the intended parents for terminating a gestational surrogacy contract pursuant to this23
Section.24
C. Absent timely notice of termination by an intended parent or the25
gestational mother, no court shall terminate an enforceable gestational surrogacy26
contract after issuance of a valid Order Preceding Embryo Transfer except for good27
cause shown after a hearing. No court shall terminate a gestational surrogacy28
contract after a successful in utero embryo transfer.29 HLS 14RS-813 REENGROSSED
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§2720.10. Remedies1
After in utero embryo transfer, a failure to perform under the gestational2
surrogacy contract does not give rise to the right to dissolution. The parties' rights3
and responsibilities are otherwise governed by the rules of the Titles on Obligations4
in General and Conventional Obligations or Contracts.5
§2720.11. Termination of contract and effects of divorce, nullity, death6
A judgment of divorce or judicial declaration of nullity of a marriage between7
the intended parents, entered before in utero embryo transfer, terminates the8
gestational surrogacy contract. Upon the filing of a motion notifying the court of the9
judgment of divorce or declaration of nullity, the court shall issue an order vacating10
the Order Preceding Embryo Transfer. If an intended parent dies before in utero11
embryo transfer, the deceased individual is not a parent of the resulting child unless12
the child was born within three years of the death of the decedent and the deceased13
agreed in writing that if the in utero embryo transfer were to occur after death, the14
deceased individual would be a parent of the child and that the child would have all15
rights, including the capacity to inherit from the decedent.16
§2720.12. Effect of subsequent marriage17
After the issuance of an Order Preceding Embryo Transfer, subsequent18
marriage of the gestational mother does not affect the validity of a gestational19
surrogacy contract. The consent of the spouse is not required, and he is not a20
presumed father of the resulting child, notwithstanding any legal presumption to the21
contrary.22
§2720.13. Post-Birth Order23
A. Upon birth of a child to a gestational mother within three hundred days24
after in utero embryo transfer, the intended parents or their successors, the25
gestational mother, or her spouse shall file a motion requesting issuance of a26
Post-Birth Order. The motion shall be accompanied by a certified copy of the child's27
original birth certificate and an affidavit executed by the intended parents containing28 HLS 14RS-813 REENGROSSED
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an accounting of fees and charges paid or agreed to be paid by or on behalf of the1
intended parents in connection with the gestational surrogacy contract.2
B. If neither the intended parents, their successors, the gestational mother,3
or her spouse file the motion described in Subsection A of this Section, the4
Department of Children and Family Services may file a motion notifying the court5
that a child has been born to the gestational mother within three hundred days after6
in utero embryo transfer, and the court shall set the motion for hearing.7
C. The court may order a hearing and, after finding that the parties have8
complied with this Part, shall issue a Post-Birth Order:9
(1) Confirming that the intended parents are the legal parents of the child and10
are financially responsible for the child.11
(2) If necessary, ordering that the child be surrendered to the intended12
parents.13
(3) Directing that a new birth certificate be created and that the intended14
parents be listed on the birth certificate as the parents of the child pursuant to R.S.15
40:32 et seq., and that the original birth certificate be sealed and subject to release16
or inspection only upon application to the court for good cause shown.17
§2720.14. DNA testing18
If the child is alleged not to be the child of the intended parents, supported19
by a sworn affidavit alleging specific facts which either tend to prove or deny20
filiation, the court shall order genetic testing to determine the parentage of the child.21
If the court finds after a contradictory hearing that the child is the genetic child of the22
gestational mother, the court shall issue an order recognizing her as a legal parent of23
the child. If any party refuses to submit to such tests, the court may resolve the24
question of filiation against such party or enforce its order if the rights of others and25
the interests of justice so require.26 HLS 14RS-813 REENGROSSED
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§2720.15. Finality; time limitations1
A. A party to the gestational surrogacy contract may bring an action to annul2
a Post-Birth Order. However, except as otherwise provided in this Part, no action3
to annul a Post-Birth Order may be brought except on the grounds of fraud or duress.4
B. An action to annul a Post-Birth Order based upon a claim of fraud or5
duress perpetrated by:6
(1) Anyone other than an intended parent shall be brought within one year7
from the date of the signing of the final decree or mailing of the notice of the8
judgment when required.9
(2) An intended parent shall be brought within two years from the date of the10
signing of the final decree or mailing of the notice of the judgment when required.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 means16
by the state registrar and the required contents are:17
(1) Contents of birth certificate. The certificate of birth shall contain, as a18
minimum, 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 provided 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 HLS 14RS-813 REENGROSSED
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(v) In the case of a child born of a surrogate birth parent who is related by1
blood or affinity to a biological parent, as a result of an enforceable gestational2
surrogacy contract, as defined in R.S. 9:2720, the full name of the biological parent3
father who is proven to be the father by DNA testing shall be listed as the father.4
(i) Maiden name of mother; however, if the child was born of a surrogate5
birth parent who is related by blood or affinity to a biological parent, as a result of6
an enforceable gestational surrogacy contract, as defined in R.S. 9:2720, the maiden7
name of the biological parent mother who is proven to be the mother by DNA testing8
shall be listed as the mother and the name of the surrogate birth parent is not9
required.10
(j) In the case of a child born of a surrogate birth parent who is related by11
blood or affinity to a biological parent, as a result of an enforceable gestational12
surrogacy contract, as defined in R.S. 9:2720, the biological parents proven to be the13
mother and father by DNA testing shall be considered the parents of the child. 14
Section 3. R.S. 14:286(D) is hereby amended and reenacted and R.S. 14:286(E) is15
hereby enacted to read as follows:16
§286. Sale of minor children; penalties17
* * *18
D.(1) It shall be unlawful for any person to enter into, induce, arrange,19
procure, knowingly advertise for, or otherwise assist in a gestational surrogacy20
contract, whether written or unwritten, that is not in compliance with the21
requirements provided for in R.S. 9:2718, et seq.22
(2) No person who is a party to, or acting on behalf of the parties to a23
gestational surrogacy contract shall make or agree to make any disbursements in24
connection with the gestational surrogacy contract other than the following:25
(a) Payment of actual medical expenses, including hospital, testing, nursing,26
midwifery, pharmaceutical, travel, or other similar expenses, incurred by the27
gestational mother for prenatal care and those medical and hospital expenses28
incurred incident to birth.29 HLS 14RS-813 REENGROSSED
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(b) Payment of actual expenses incurred for mental health counseling1
services provided to the gestational mother prior to the birth and up to six months2
after birth.3
(c) Payment of actual lost wages of the gestational mother, not covered under4
a disability insurance policy, when bed rest has been prescribed for the gestational5
mother for some maternal or fetal complication of pregnancy and the gestational6
mother, who is employed, is unable to work during the prescribed period of bed rest.7
(d) Payment of actual travel costs related to the pregnancy and delivery,8
court costs, and attorney fees incurred by the gestational mother.9
(3) It shall be unlawful for any person to enter into, induce, arrange, procure,10
knowingly advertise for, or otherwise assist in an agreement for genetic surrogacy,11
with or without compensation, whether written or unwritten. For purposes of this12
Section, "genetic surrogacy" and "compensation" shall have the same meaning as13
defined in R.S. 9:2718.14
(4) It shall be unlawful for any person to give or offer payment of money,15
objects, services, or anything of monetary value to induce any woman, whether or16
not she is party to an enforceable or unenforceable agreement for genetic surrogacy17
or gestational surrogacy contract, to consent to an abortion as defined in R.S.18
40:1299.35.1.19
D.E. A person convicted of violating any of the provisions of this Section20
shall be punished by a fine not to exceed fifty thousand dollars or imprisonment with21
or without hard labor for not more than ten years, or both.22
Section 4. Part VII of Chapter 2 of Title 40 of the Louisiana Revised Statutes of23
1950, comprised of R.S. 40:93 through 97, is hereby enacted to read as follows:24
PART VII. GESTATIONAL SURROGACY DATA COLLECTION25
§93. Gestational surrogacy data collection; purpose26
The purpose of this Part shall be the compilation of relevant maternal life and27
health factors and data concerning gestational surrogacy to the extent that it is28
authorized by law.29 HLS 14RS-813 REENGROSSED
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§94. Forms for collection of data1
The state registrar shall prescribe forms for the collection of information and2
statistics with respect to enforceable gestational surrogacy contracts. Such forms3
shall require but not be limited to the following information:4
(1) The age, marital status, and state and parish of domicile of the gestational5
mother.6
(2) The parish in which the in utero embryo transfer took place.7
(3) The full name and address of the physician or physicians performing or8
attending to the following phases of the gestational surrogacy:9
(a) In utero embryo transfer.10
(b) Prenatal and postnatal care.11
(c) Birth.12
(d) Miscarriage.13
(e) Induced abortion.14
(4) The age, marital status, and state and parish of domicile of the intended15
mother and father.16
(5) The medical reason necessitating the gestational surrogacy.17
(6) The medical procedures employed in the birth, miscarriage, or18
termination of pregnancy for medical emergency as defined by R.S. 40:1299.35.12.19
(7) The length and weight of the child born as a result of gestational20
surrogacy.21
(8) The length and weight of an unborn child miscarried after the initiation22
of a gestational surrogacy.23
(9) Other significant conditions or health complications of the unborn child24
and mother.25
(10) The results of pathological examinations of any unborn child who died26
as a result of pregnancy complications or termination incidental to a gestational27
surrogacy.28 HLS 14RS-813 REENGROSSED
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§95. Completion of forms; filing with vital records registry1
The physician performing the in utero embryo transfer or termination of the2
pregnancy by birth, miscarriage, or abortion shall provide the information required3
by the provisions of R.S. 40:94. Such completed forms shall be transmitted by the4
physician to the vital records registry within fifteen days of the performance of the5
medical procedures.6
§96. Failure to complete form; penalty7
The Department of Health and Hospitals shall promulgate by rule the penalty8
for the failure to complete the forms as provided in R.S. 40:95.9
§97. Confidentiality10
The vital statistics records required by this Part and the identities of the11
parties to a gestational surrogacy contract shall be confidential and shall not be12
subject to disclosure, release, or inspection except upon application to a competent13
court and in conformity with the applicable requirements of confidentiality14
applicable to adoptions in the Children's Code. The reporting of the data for public15
health purposes shall redact any identifying information and any public report shall16
indicate patient numbers as assigned pursuant to rules promulgated by the17
Department of Health and Hospitals.18
Section 5. R.S. 44:4.1(B)(26) is hereby amended and reenacted to read as follows:19
§4.1. Exceptions20
* * *21
B. The legislature further recognizes that there exist exceptions, exemptions,22
and limitations to the laws pertaining to public records throughout the revised23
statutes and codes of this state. Therefore, the following exceptions, exemptions, and24
limitations are hereby continued in effect by incorporation into this Chapter by25
citation:26
* * *27
(26) R.S. 40:3.1, 31.14, 31.27, 39.1, 41, 73, 94, 95, 526, 528, 1007, 1098.8,28
1232.7, 1299.6, 1299.35.10, 1299.44, 1299.85, 1299.87, 1300.14, 1300.54,29 HLS 14RS-813 REENGROSSED
HB NO. 187
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CODING: Words in struck through type are deletions from existing law; words underscored
are additions.
1379.1.1(D), 1379.3, 2009.8, 2009.14, 2010.5, 2017.9, 2018, 2019, 2020, 2106,1
2109.1, 2138, 2532, 2845.12
* * *3
Section 6. R.S. 9:2713 is hereby repealed in its entirety.4
Section 7. The provisions of Section 3 of this Act shall not apply to contracts entered5
into prior to the effective date of this Act.6
DIGEST
The digest printed below was prepared by House Legislative Services. It constitutes no part
of the legislative instrument. The keyword, one-liner, abstract, and digest do not constitute
part of the law or proof or indicia of legislative intent. [R.S. 1:13(B) and 24:177(E)]
Lopinto HB No. 187
Abstract: Prohibits genetic surrogacy contracts and certain gestational surrogacy contracts,
provides for the enforceability of gestational surrogacy contracts, and provides for
data collection of certain information relative to gestational surrogacy contracts.
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 (R.S. 9:2718) defines the following terms: "compensation", "gamete",
"genetic surrogacy", "gestational surrogacy", "gestational mother", "in utero embryo
transfer", and "intended parents".
Proposed law (R.S. 9:2719) provides that a contract for genetic surrogacy shall be absolutely
null.
Proposed law (R.S. 9:2720) provides that a gestational surrogacy contract is only enforceable
if approved by a court before in utero implantation. Further prohibits a gestational surrogacy
contract for compensation and prohibits a gestational surrogacy contract that requires the
gestational mother to consent to terminate a pregnancy if prenatal testing reveals certain
disabilities or to reduce multiple fetuses.
Proposed law (R.S. 9:2720.1) requires a gestational mother to be at least 25 years of age, but
not more than 35 years of age, and to have already given birth to at least one child at the time
the gestational surrogacy contract is executed.
Proposed law (R.S. 9:2720.2) requires the gestational mother to do all of the following in a
gestational surrogacy contract:
(1)Agree to become pregnant by in utero implantation, using the gametes of the
intended parents, and give birth to the resulting child.
(2)Agree to reasonable medical testing and instructions regarding prenatal health and
to execute a medical records release in favor of the intended parents. HLS 14RS-813 REENGROSSED
HB NO. 187
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CODING: Words in struck through type are deletions from existing law; words underscored
are additions.
(3)Certify that she has attended at least two counseling sessions, separated by at least
30 days, with a mental health professional prior to executing a gestational surrogacy
contract.
(4)Certify that she agrees to relinquish all rights of the child born as a result of the in
utero implantation. If the surrogate is married, her spouse must also relinquish all
rights.
Proposed law further requires the intended parents to do all of the following in a gestational
surrogacy contract:
(1)Acknowledge that the gestational mother has sole authority with respect to medical
decision making during the pregnancy.
(2)Agree to accept custody and full parental rights of the child, regardless of any
impairment of the child.
(3)Be recognized as the legal parents of the child.
Proposed law requires the parties to agree on a preliminary estimate of anticipated expenses.
Proposed law (R.S. 9:2720.3) allows the parties to the gestational surrogacy contract to seek
court approval of a gestational surrogacy contract before in utero implantation by initiating
a summary proceeding in the court exercising jurisdiction over adoptions where the intended
parents or gestational mother reside.
Proposed law (R.S. 9:2720.4) requires the court to order background checks on each of the
intended parents, the gestational mother, and her spouse, if married.
Proposed law (R.S. 9:2720.5) requires the court to set a hearing within 60 days of the
initiation of a proceeding to approve a gestational surrogacy contract, and requires the court
to issue an Order Preceding Embryo Transfer approving the gestational surrogacy contract
upon finding all of the following:
(1)All requirements of proposed law regarding gestational surrogacy contracts have
been satisfied and that the background checks show there is no risk of harm to the
child or the gestational mother.
(2)Provisions have been made for all reasonable health care and legal expenses
associated with the gestational surrogacy contract.
(3)The gestational mother will only be compensated for actual medical expenses,
mental health counseling expenses, actual lost wages of the gestational mother due
to prescribed bed rest, actual travel costs, and any monetary recovery obtained
because of death or loss of reproductive organs or capability to gestational mother
because of the in utero embryo transfer and pregnancy.
(4)The parties understand the contract and freely give consent.
Proposed law (R.S. 9:2720.6) provides that the gestational surrogacy contract and the Order
Preceding Embryo Transfer shall remain in full force and effect in accordance with the
parties' agreement or until a live birth occurs when there are multiple attempts at in utero
implantation.
Proposed law (R.S. 9:2720.7) requires all proceedings and court records relative to the
gestational surrogacy contract be held and maintained confidentially. HLS 14RS-813 REENGROSSED
HB NO. 187
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CODING: Words in struck through type are deletions from existing law; words underscored
are additions.
Proposed law (R.S. 9:2720.8) provides for the continuing and exclusive jurisdiction of the
court approving a gestational surrogacy contract for matters relative to a gestational
surrogacy contract.
Proposed law (R.S. 9:2720.9) allows the intended parents or the gestational mother to
terminate a gestational surrogacy contract before in utero implantation by filing notice of
termination with the court and serving all parties. Further provides that neither a gestational
mother, nor her spouse, is liable to the intended parents for terminating a gestational
surrogacy contract. Also prohibits the court from terminating a gestational surrogacy
contract after issuing a valid Order Preceding Embryo Transfer, except for good cause, or
after a successful in utero implantation.
Proposed law (R.S. 9:2720.10) provides for remedies for the failure to perform under a
gestational surrogacy contract.
Proposed law (R.S. 9:2720.11) requires the court to issue an order vacating the Order
Preceding Embryo Transfer when a judgment of divorce or judicial declaration of nullity of
a marriage between the intended parents is entered before in utero implantation. Further
provides that an intended parent who dies before in utero implantation is considered a parent
of a resulting child only when the child is born within three years of the death of the intended
parent and the deceased agreed in writing that the deceased would be a parent of the child
if the in utero implantation occurred after death.
Proposed law (R.S. 9:2720.12) provides that the subsequent marriage of the gestational
mother has no effect on the validity of a gestational surrogacy contract.
Proposed law (R.S. 9:2720.13) requires the intended parents or the gestational mother to file
a motion requesting issuance of a Post-Birth Order upon birth of a child within 300 days of
in utero implantation. Authorizes DCFS to file the motion if the parties fail to do so.
Proposed law requires the court to issue a Post-Birth Order, after finding the parties have
complied with the requirements of proposed law, which shall contain the following:
(1)Confirmation that the intended parents are the legal parents.
(2)An order that the child be surrendered to the intended parents.
(3)An order for the creation of a new birth certificate listing the intended parents as the
parents of the child and for the original birth certificate to be sealed.
Proposed law (R.S. 9:2720.14) provides for DNA testing when the child is alleged not to be
the child of the intended parents.
Proposed law (R.S. 9:2720.15) restricts the basis of annulment of a Post-Birth Order to
allegations of fraud and duress. Requires an action to annul be brought within one year from
the date of the signing of the final decree or mailing of the notice of judgment when it is
alleged that someone other than the intended parents perpetrated the fraud or duress, or two
years from the date of signing if an intended parent is alleged to have perpetrated the fraud
or duress.
Present law provides for the surname of the child, the name of the father, and the name of
the mother when a child is born of a surrogate birth parent. Further limits a surrogate birth
parent to one who "is related by blood or affinity to a biological parent".
Proposed law retains present law except that it eliminates the provision limiting a surrogate
birth parent to one who "is related by blood or affinity to a biological parent" and makes
changes consistent with proposed law. HLS 14RS-813 REENGROSSED
HB NO. 187
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are additions.
Present law (R.S. 14:286) provides for the crime of sale of minor children, including selling
or surrendering a minor child to another for money or anything of value, or paying for the
procurement of an act of voluntary surrender for the adoption of a child.
Proposed law retains present law and adds any act that is not in compliance with the
requirements for gestational surrogacy contracts under R.S. 9:2718, et seq., or any act by a
person assisting in a genetic surrogacy contract for compensation as defined in R.S. 9:2718,
et seq., to the enumerated list of actions constituting the crime of sale of minor children.
Proposed law further prohibits any person from offering money or anything of value to a
woman to consent to an abortion, whether or not she is a party to an enforceable or
unenforceable agreement for genetic or gestational surrogacy. Further provides for
application to those contracts already entered into on the effective date of this Act.
Proposed law (R.S. 40:94, et seq.) establishes a database collection system for information
relative to gestational surrogacy contracts, including information pertaining to complications
of pregnancy, miscarriages, or terminations. Provides procedures for the collection of data,
penalties for failure to comply, and confidentiality of the data collected.
Present law prohibits a "contract for surrogate motherhood" defined as any agreement
whereby a person not married to the contributor of the sperm agrees for valuable
consideration to be inseminated, to carry any resulting fetus to birth, and then to relinquish
to the contributor of the sperm the custody and all rights and obligations to the child.
Proposed law repeals present law.
Effective Aug. 1, 2014.
(Amends R.S.14:286(D), R.S. 40:34(B)(1)(a)(viii), (h)(v), (i), and (j), and R.S.
44:4.1(B)(26); Adds R.S. 9:2718-2720.15, R.S. 14:286(E), and R.S. 40:93-97; Repeals R.S.
9:2713)
Summary of Amendments Adopted by House
Committee Amendments Proposed by House Committee on Civil Law and Procedure
to the original bill.
1. Added a definition for "compensation".
2. Changed terminology in proposed law from "gestational carrier" to "gestational
mother".
3. Prohibited a gestational mother from being older than 35 years of age.
4. Defined "intended parents" as a man and woman who are married in accordance
with Louisiana law.
5. Prohibited gestational surrogacy contracts for compensation and declared such
a contract as absolutely null and unenforceable as against public policy.
6. Prohibited provisions of a gestational surrogacy contract from requiring a
gestational mother to consent to terminating a pregnancy if prenatal testing
reveals an actual or potential disability, for reducing multiple fetuses, or for
discrimination based on gender.
7. Changed all "reasonable" expenses as compensation the gestational mother is
allowed to receive to "actual" expenses and allowed gestational mother to receive
compensation for her actual lost wages due to prescribed bed rest. Further HLS 14RS-813 REENGROSSED
HB NO. 187
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are additions.
authorized payment of a judicial recovery to the gestational mother or her heirs
due to the death of the gestational mother or her loss of reproductive organs or
capability due to the in utero embryo transfer, pregnancy or resulting childbirth,
miscarriage, or termination.
8. Prohibited any person from entering into, inducing, arranging, procuring,
knowingly advertising for, or otherwise assisting in a gestational surrogacy
contract when the action is not in compliance with R.S. 9:2718, et seq. Provided
for exceptions for certain persons making payment on behalf of the parties to a
gestational surrogacy contract for the certain services and prohibited application
to those contracts entered into before the effective date of this Act.
9. Created a database collection system for information relative to gestational
surrogacy contracts, including information pertaining to complications of
pregnancy, miscarriages, or terminations. Provided procedures for the collection
of data, penalties for failure to comply, and confidentiality of the data collected.
10.Made numerous technical amendments to conform with the substantive changes.
House Floor Amendments to the engrossed bill.
1. Added prohibition of any person from entering into, inducing, arranging,
procuring, knowingly advertising for, or otherwise assisting in a genetic
surrogacy contract for compensation as defined in R.S. 9:2718, et seq.
2. Added prohibition of any person giving or offering a payment of money or
something of value to induce a woman to consent to an abortion, whether she is
a party to an enforceable or unenforceable agreement for genetic or gestational
surrogacy.
3. Made numerous technical amendments.