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Prepared by Julie J. Baxter.
Lopinto HB No. 187
(KEYWORD, SUMMARY, AND DIGEST as amended by Senate committee
amendments)
CHILDREN. Provides for surrogacy regulation in Louisiana
DIGEST
Present law provides that a contract for surrogate motherhood shall be absolutely null and
shall be void and unenforceable as contrary to public policy. Present law provides that
"Contract for surrogate motherhood" means any agreement whereby a person not married to
the contributor of the sperm agrees for valuable consideration to be inseminated, to carry any
resulting fetus to birth, and then to relinquish to the contributor of the sperm the custody and
all rights and obligations to the child.
Proposed law (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.
(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. Page 2 of 5
Prepared by Julie J. Baxter.
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.
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. Page 3 of 5
Prepared by Julie J. Baxter.
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.
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
gestational mother 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. Page 4 of 5
Prepared by Julie J. Baxter.
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
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. Page 5 of 5
Prepared by Julie J. Baxter.
3. Made numerous technical amendments.
Summary of Amendments Adopted by Senate
Committee Amendments Proposed by Senate Committee on Judiciary A to the engrossed
bill
1. Changed section title for R.S. 14:286.
2. Changed "woman" to "gestational mother".
3. Added Section 8. to the Act providing that the Louisiana State Law Institute is
hereby directed to prepare comments to the provisions of the Act.