Lopinto HB No. 187
Existing law provides that a contract for surrogate motherhood shall be absolutely null and
shall be void and unenforceable as contrary to public policy. Existing 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) would have defined the following terms: "compensation",
"gamete", "genetic surrogacy", "gestational surrogacy", "gestational mother", "in utero
embryo transfer", and "intended parents".
Proposed law (R.S. 9:2719) would have provided that a contract for genetic surrogacy shall
be absolutely null.
Proposed law (R.S. 9:2720) would have provided that a gestational surrogacy contract is only
enforceable if approved by a court before in utero implantation. Further would have
prohibited a gestational surrogacy contract for compensation and would have prohibited 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) would have required 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) would have required 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 would have required 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
decisionmaking 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 would have required the parties to agree on a preliminary estimate of
anticipated expenses.
Proposed law (R.S. 9:2720.3) would have allowed 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) would have required 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) would have required the court to set a hearing within 60 days
of the initiation of a proceeding to approve a gestational surrogacy contract, and would have
required 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 healthcare 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) would have provided 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) would have required all proceedings and court records relative
to the gestational surrogacy contract be held and maintained confidentially.
Proposed law (R.S. 9:2720.8) would have provided 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) would have allowed 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 would have provided that
neither a gestational mother, nor her spouse, is liable to the intended parents for terminating
a gestational surrogacy contract. Also would have prohibited 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) would have provided for remedies for the failure to perform
under a gestational surrogacy contract.
Proposed law (R.S. 9:2720.11) would have required 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.
Would have also provided 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) would have provided 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) would have required 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. Would have authorized DCFS to file the motion if the
parties fail to do so.
Proposed law would have required 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) would have provided for DNA testing when the child is
alleged not to be the child of the intended parents.
Proposed law (R.S. 9:2720.15) would have restricted the basis of annulment of a Post-Birth
Order to allegations of fraud and duress. Would have required 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 would have retained existing law except that it would have eliminated the
provision limiting a surrogate birth parent to one who "is related by blood or affinity to a
biological parent" and would have made 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 any thing of value, or paying for the
procurement of an act of voluntary surrender for the adoption of a child.
Proposed law would have retained existing law and would have added 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 would have also prohibited any person from offering money or any thing 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. Would have
also provided for application to those contracts already entered into on the effective date of
this act.
Proposed law (R.S. 40:94, et seq.) would have established a database collection system for
information relative to gestational surrogacy contracts, including information pertaining to
complications of pregnancy, miscarriages, or terminations. Would have provided 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 would have repealed existing law.
(Proposed to amend 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); add R.S. 9:2718-2720.15, R.S. 14:286(E), and R.S. 40:93-97; and repeal R.S.
9:2713)
VETO MESSAGE: "A year ago, I vetoed legislation which would have created commercial
surrogacy contracts in Louisiana. In the time since, supporters of similar legislation have
worked to address the bioethical concerns which led to that veto. While some progress has
been made, and the legislation has been improved, I must nonetheless veto this legislation
out of an abundance of concern regarding the ramifications of government-endorsed
surrogacy contracts and how this legislation impacts the way we value human life. All Louisianians are at liberty today to engage in informal agreements regarding surrogacy -
this is simply a question of whether we ought to codify and regulate such agreements, and
if so, what these regulations ought to entail.
My heart goes out to those who face the tragedies of miscarriage and infertility. The inability
to conceive or bear children is a deep wound in our society, unnoticed by most, and suffered
by too many. The desire to have a child is rooted in the love that created and sustains each
of us - and when we seek the blessing of children, it is our best selves speaking to action.
A state reflecting that goodness, and that love, will protect the dignity of human life - women
and children at the foremost - and seek to open the doors to that fulfillment in family.
However, despite the good intentions and hard efforts of the author, this legislation still
raises concerns for many in the pro-life community.
Thus, I cannot in good conscience, sign this bill. For these reasons and with deep conviction,
I have vetoed House Bill No. 187 and hereby return it to the House of Representatives."