HLS 16RS-1965 ENGROSSED
2016 Regular Session
HOUSE BILL NO. 1102
BY REPRESENTATIVE BISHOP
CHILDREN: Provides relative to gestational carriers
1 AN ACT
2To amend and reenact R.S. 14:286(D), R.S. 40:34(B)(1)(a)(viii), (h)(v), (i), and (j), and R.S.
3 44:4.1(B)(26), to enact Chapter 1-C of Code Title IV of Code Book III of Title 9 of
4 the Louisiana Revised Statutes of 1950, comprised of R.S. 9:2718 through 2720.15,
5 R.S. 14:286(E), and Part VII of Chapter 2 of Title 40 of the Louisiana Revised
6 Statutes of 1950, comprised of R.S. 40:93 through 97, and to repeal R.S. 9:2713,
7 relative to gestational carriers; to provide for amendments to birth certificates; to
8 provide for definitions relative to gestational carrier contracts; to provide for genetic
9 gestational carrier contracts; to provide for the enforceability of gestational carrier
10 contracts; to provide for the parties to a gestational carrier contract; to provide for
11 contractual requirements for a gestational carrier contract; to provide for a
12 proceeding to approve a gestational carrier contract; to provide for the check of the
13 criminal records of the parties to a gestational carrier contract; to provide for an
14 order preceding embryo transfer relative to a gestational carrier contract; to provide
15 for matters relative to multiple attempts at in utero embryo transfer; to provide for
16 confidentiality of the proceedings relative to a gestational carrier contract; to
17 provide for continuing and exclusive jurisdiction to the proceedings relative to a
18 gestational carrier contract; to provide for the termination of a gestational carrier
19 contract by notice; to provide for remedies for the failure to perform under a
20 gestational carrier contract; to provide for the termination of a gestational carrier
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1 contract and for the effects of divorce, nullity, and death on a gestational carrier
2 contract; to provide for the effect of a subsequent marriage of the gestational mother
3 on a gestational carrier contract; to provide for a post-birth order; to provide for
4 DNA testing when the child is alleged not to be the child of the intended parents; to
5 provide for time limitations and finality; to prohibit certain acts relative to a
6 gestational carrier contract occurring on or after the effective date; to provide for
7 data collection; and to provide for related matters.
8Be 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 the Louisiana
10Revised Statutes of 1950, comprised of R.S. 9:2718 through 2720.15, is hereby enacted to
11read as follows:
12 CHAPTER 1-C. GESTATIONAL CARRIER CONTRACTS
13 PART I. DEFINITIONS
14 §2718. Definition of terms
15 As used in this Chapter, the following terms shall have the meanings ascribed
16 to them in this Section unless otherwise provided for or unless the context otherwise
17 indicates:
18 (1) "Compensation" means a payment of money, objects, services, or
19 anything else having monetary value. Compensation shall not include
20 reimbursement of actual expenses, as provided for in R.S. 9:2720.5(B)(3), to the
21 gestational mother or payment for goods or services incurred by the intended parents
22 as a result of the pregnancy and that would not have been incurred but for the
23 pregnancy.
24 (2) "Gamete" means either a sperm or an egg.
25 (3) "Genetic gestational carrier" means the process by which a woman
26 attempts to carry and give birth to a child using her own gametes and either the
27 gametes of a person who intends to parent the child or donor gametes, when there is
28 an agreement to relinquish the custody of and all rights and obligations to the child.
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1 (4) "Gestational carrier" means the process by which a woman attempts to
2 carry and give birth to a child born as a result of in utero transfer of a human embryo
3 who has no genetic contribution from the gestational mother.
4 (5) "Gestational mother" means a woman who agrees to engage in a
5 gestational carrier.
6 (6) "In utero embryo transfer" means the medical procedure whereby the
7 genetic mother's egg is fertilized with the sperm of the genetic father, with the
8 resulting embryo transferred into the uterus of the gestational mother.
9 (7) "Intended parents" means a man and a woman who are married to each
10 other in accordance with Louisiana law who contribute their gametes and who enter
11 into an enforceable gestational carrier contract, as defined in this Chapter, with a
12 gestational mother pursuant to which they will be the legal parents of the child
13 resulting from that assisted reproduction.
14 PART II. GENETIC GESTATIONAL CARRIER
15 §2719. Contract for a genetic gestational carrier; nullity
16 A contract for a genetic gestational carrier shall be absolutely null.
17 PART III. GESTATIONAL CARRIER
18 §2720. Enforceability of gestational carrier contract
19 A. In accordance with the requirements of this Part, an agreement to be
20 known as a gestational carrier contract is enforceable only if it is in writing and
21 signed by the gestational mother, her spouse if she is married, and both of the
22 intended parents.
23 B. A gestational carrier contract is enforceable only if approved by a court
24 in advance of in utero embryo transfer, and is in accordance with all of the
25 requirements of this Part.
26 C. No person shall enter into a gestational carrier contract for compensation
27 as defined in R.S. 9:2718 or that is not in compliance with all of the requirements of
28 this Part. Any such contract executed in the state of Louisiana or any other state
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1 shall be absolutely null and unenforceable in the state of Louisiana as contrary to
2 public policy.
3 D. No person shall enter into a gestational carrier contract that requires the
4 gestational mother to consent to terminate a pregnancy resulting from in utero
5 embryo transfer for any reason, including a prenatal diagnosis of an actual or
6 potential disability, impairment, genetic variation, or any other health condition or
7 a discrimination based on gender, or for the purposes of the reduction of multiple
8 fetuses. Any such provision in a contract executed in the state of Louisiana or any
9 other state shall be absolutely null and unenforceable in the state of Louisiana as
10 contrary to public policy.
11 §2720.1. Parties to a gestational carrier contract
12 A gestational mother shall, at the time the gestational carrier contract is
13 executed:
14 (1) Be at least twenty-five years of age, and no older than thirty-five years
15 of age.
16 (2) Have given birth to at least one child.
17 §2720.2. Contractual requirements
18 A. In an enforceable gestational carrier contract, the gestational mother shall
19 do all of the following:
20 (1) Agree to become pregnant by means of in utero embryo transfer, using
21 the gametes of the intended parents, and to give birth to the resulting child.
22 (2) Agree to reasonable medical evaluation and treatment during the term of
23 the pregnancy, to adhere to reasonable medical instructions about prenatal health,
24 and to execute medical records releases under R.S. 40:1165.1 in favor of the intended
25 parents.
26 (3) Certify that prior to executing the gestational carrier contract she has
27 undergone at least two counseling sessions, separated by at least thirty days, with a
28 licensed clinical social worker, licensed psychologist, medical psychologist, licensed
29 psychiatrist, or licensed counselor, to discuss the proposed gestational carrier.
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1 (4) Certify, along with her spouse if she is married, that she will relinquish
2 all rights and duties as the parents of a child born as a result of in utero embryo
3 transfer.
4 B. In an enforceable gestational carrier contract, the intended parents shall
5 be a man and woman who are married to each other in accordance with Louisiana
6 law and shall certify in writing that they do all of the following:
7 (1) Acknowledge that the gestational mother has sole authority with respect
8 to medical decision-making during the term of the pregnancy consistent with the
9 rights of a pregnant woman carrying her own biological child.
10 (2) Agree to accept custody of and to assume full parental rights and
11 responsibilities for the child immediately upon the child's birth, regardless of any
12 impairment of the child.
13 (3) Be recognized as the legal parents of the child.
14 C. The gestational carrier contract shall include a preliminary estimate of
15 anticipated expenses and their allocation in accordance with R.S. 9:2720.5.
16 §2720.3. Proceeding to approve gestational carrier contract
17 A. Prior to in utero embryo transfer, the intended parents or the gestational
18 mother and her husband, if she is married, may initiate a summary proceeding in the
19 court exercising jurisdiction over the adoption of minors where the intended parents
20 or the gestational mother reside, seeking to have the court approve a gestational
21 carrier contract.
22 B. A proceeding to approve a gestational carrier contract shall be maintained
23 only if all of the following occur:
24 (1) The gestational mother and each of the intended parents have been
25 domiciled in this state for at least one hundred eighty days.
26 (2) The intended parents, the gestational mother, and her spouse, if she is
27 married, are all parties to the proceeding.
28 (3) A copy of the proposed gestational carrier contract is attached to the
29 motion.
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1 (4) An independent board certified physician in obstetrics and gynecology
2 or in reproductive endocrinology, who has medically treated the intended mother
3 over a period of time such that the physician is competent to reach medical
4 conclusions about the intended mother's medical condition and submits a signed
5 affidavit certifying that in utero embryo transfer with a gestational mother is
6 medically necessary to assist in reproduction.
7 (5) For purposes of this Section, "medically necessary" means that the
8 intended mother has been diagnosed to be infertile, or to have a physical condition
9 such that a pregnancy would create serious risk of death or substantial and
10 irreversible impairment of a major bodily function beyond the risk customary to
11 pregnancy and child birth.
12 §2720.4. Institution of records check
13 A. Upon the initiation of the summary proceeding, the court shall do all of
14 the following:
15 (1) Order and be entitled to the criminal history record and identification
16 files of the Louisiana Bureau of Criminal Identification and Information on each of
17 the intended parents and the gestational mother and her spouse, if she is married, as
18 a means of performing background checks on those individuals. The bureau shall,
19 upon request and after receipt of fingerprint cards and other identifying information
20 from the court, make available to the court information contained in the bureau's
21 criminal history record and identification files, which pertains to each of the intended
22 parents and the gestational mother and her spouse, if she is married. In addition, in
23 order to determine an applicant's suitability, the fingerprints shall be forwarded by
24 the bureau to the Federal Bureau of Investigation for a national criminal history
25 record check. The bureau shall charge a processing fee as provided in R.S.
26 15:587(B)(1).
27 (2) Order that the Department of Children and Family Services conduct a
28 records check for validated complaints of child abuse or neglect in this or any other
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1 state in which either of the intended parents and the gestational mother and her
2 spouse, if she is married, has been domiciled since becoming a major.
3 (3) Order that the judicial administrator's office of the Louisiana Supreme
4 Court conduct a records check for court orders entered into the Louisiana Protective
5 Order Registry involving each of the intended parents and the gestational mother and
6 her spouse, if she is married.
7 B. Each order shall state the full name, date of birth, social security number,
8 and former and current state of domicile since becoming a major of each subject of
9 the check.
10 C. The sheriff or the office of state police, Louisiana Bureau of Criminal
11 Identification and Information, the Department of Children and Family Services, and
12 the judicial administrator's office of the Louisiana Supreme Court shall accord
13 priority to these orders and shall provide a certificate to the court indicating all
14 information discovered, or that no information has been found.
15 §2720.5. Order Preceding Embryo Transfer
16 A. Within sixty days of the initiation of a proceeding to approve a gestational
17 carrier contract, the court shall set the matter for hearing, and after the hearing may
18 issue an order, known as the Order Preceding Embryo Transfer, approving the
19 gestational carrier contract and declaring that the intended parents shall be
20 recognized as the legal parents of a child born pursuant to the gestational carrier
21 contract.
22 B. The court shall issue an Order Preceding Embryo Transfer upon finding
23 that all of the following have occurred:
24 (1) The requirements of R.S. 9:2720-2720.3 have been satisfied and the
25 reports of criminal records, validated complaints of child abuse or neglect, and
26 Louisiana Protective Order Registry checks show that there is no risk of harm to the
27 child or the gestational mother.
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1 (2) Provisions have been made for all reasonable healthcare and legal
2 expenses associated with the gestational carrier contract until the birth of the child,
3 including responsibility for those expenses if the contract is terminated.
4 (3) The gestational mother will receive no compensation other than:
5 (a) Actual medical expenses, including hospital, testing, nursing, midwifery,
6 pharmaceutical, travel, or other similar expenses, incurred by the gestational mother
7 for prenatal care and those medical and hospital expenses incurred incident to the
8 birth.
9 (b) Actual expenses incurred for mental health counseling services provided
10 to the gestational mother prior to the birth and up to six months after birth.
11 (c) Actual lost wages of the gestational mother, not covered under a
12 disability insurance policy, when bed rest has been prescribed for the gestational
13 mother for some maternal or fetal complication of pregnancy and the gestational
14 mother, who is employed, is unable to work during the prescribed period of bed rest.
15 (d) Actual travel costs related to the pregnancy and delivery, court costs, and
16 attorney fees incurred by the gestational mother.
17 (e) Payment of a judicially sanctioned settlement or judgment rendered in
18 favor of the gestational mother or her heirs as a result of her death, loss of
19 reproductive organs or capability, or any other health complication caused by the in
20 utero embryo transfer, pregnancy or resulting childbirth, miscarriage, or termination
21 of pregnancy.
22 (4) The parties understand the contract and freely give consent.
23 §2720.6. Multiple embryo transfer attempts
24 If there are multiple attempts at in utero embryo transfer, the gestational
25 carrier contract and the Order Preceding Embryo Transfer shall continue in full force
26 and effect in accordance with the parties' agreement until terminated under R.S.
27 9:2720.9 or 2720.11, or until a live birth occurs pursuant to the gestational carrier
28 contract.
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1 §2720.7. Confidentiality
2 All proceedings governed by this Chapter shall be heard by the judge in
3 chambers or in a closed hearing, and no one shall be admitted to the hearings except
4 the parties in interest, their attorneys, and officers of the court. The court, in its
5 discretion, may grant the request of a petitioner to permit others to be present at the
6 hearing. The court records of these proceedings and the identities of the parties to
7 a gestational carrier contract shall be sealed and are subject to disclosure, release, or
8 inspection only upon application to the court and in conformity with the applicable
9 requirements of confidentiality applicable to adoptions in the Children's Code.
10 §2720.8. Continuing and exclusive jurisdiction
11 Subject to the jurisdictional requirements of the Uniform Child Custody
12 Jurisdiction and Enforcement Act, the court having jurisdiction over the proceeding
13 to approve a gestational carrier contract pursuant to this Part shall have exclusive,
14 continuing jurisdiction of all matters arising out of the gestational carrier contract.
15 §2720.9. Termination of contract by notice
16 A. Before each in utero embryo transfer, the gestational mother or either of
17 the intended parents may terminate the gestational carrier contract by filing a motion
18 with the court giving notice of termination and serving all other parties with the
19 motion. Upon filing of the motion, the court shall issue an order vacating the Order
20 Preceding Embryo Transfer.
21 B. Neither a gestational mother nor her spouse, if she is married, is liable to
22 the intended parents for terminating a gestational carrier contract pursuant to this
23 Section.
24 C. Absent timely notice of termination by an intended parent or the
25 gestational mother, no court shall terminate an enforceable gestational carrier
26 contract after issuance of a valid Order Preceding Embryo Transfer except for good
27 cause shown after a hearing. No court shall terminate a gestational carrier contract
28 after a successful in utero embryo transfer.
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1 §2720.10. Remedies
2 After in utero embryo transfer, a failure to perform under the gestational
3 carrier contract does not give rise to the right to dissolution. The parties' rights and
4 responsibilities are otherwise governed by the rules of the Titles on Obligations in
5 General and Conventional Obligations or Contracts.
6 §2720.11. Termination of contract and effects of divorce, nullity, and death
7 A judgment of divorce or judicial declaration of nullity of a marriage between
8 the intended parents, entered before in utero embryo transfer, terminates the
9 gestational carrier contract. Upon the filing of a motion notifying the court of the
10 judgment of divorce or declaration of nullity, the court shall issue an order vacating
11 the Order Preceding Embryo Transfer. If an intended parent dies before in utero
12 embryo transfer, the deceased individual is not a parent of the resulting child unless
13 the child was born within three years of the death of the decedent and the deceased
14 agreed in writing that if the in utero embryo transfer were to occur after death, the
15 deceased individual would be a parent of the child and that the child would have all
16 rights, including the capacity to inherit from the decedent.
17 §2720.12. Effect of subsequent marriage
18 After the issuance of an Order Preceding Embryo Transfer, subsequent
19 marriage of the gestational mother does not affect the validity of a gestational carrier
20 contract. The consent of the spouse is not required, and he is not a presumed father
21 of the resulting child, notwithstanding any legal presumption to the contrary.
22 §2720.13. Post-Birth Order
23 A. Upon birth of a child to a gestational mother within three hundred days
24 after in utero embryo transfer, the intended parents or their successors, the
25 gestational mother, or her spouse shall file a motion requesting issuance of a
26 Post-Birth Order. The motion shall be accompanied by a certified copy of the child's
27 original birth certificate and an affidavit executed by the intended parents containing
28 an accounting of fees and charges paid or agreed to be paid by or on behalf of the
29 intended parents in connection with the gestational carrier contract.
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1 B. If neither the intended parents, their successors, the gestational mother,
2 or her spouse file the motion described in Subsection A of this Section, the
3 Department of Children and Family Services may file a motion notifying the court
4 that a child has been born to the gestational mother within three hundred days after
5 in utero embryo transfer, and the court shall set the motion for hearing.
6 C. The court may order a hearing and, after finding that the parties have
7 complied with this Part, shall issue a Post-Birth Order:
8 (1) Confirming that the intended parents are the legal parents of the child and
9 are financially responsible for the child.
10 (2) If necessary, ordering that the child be surrendered to the intended
11 parents.
12 (3) Directing that a new birth certificate be created and that the intended
13 parents be listed on the birth certificate as the parents of the child pursuant to R.S.
14 40:32 et seq., and that the original birth certificate be sealed and subject to release
15 or inspection only upon application to the court for good cause shown.
16 §2720.14. DNA testing
17 If the child is alleged not to be the child of the intended parents, supported
18 by a sworn affidavit alleging specific facts which either tend to prove or deny
19 filiation, the court shall order genetic testing to determine the parentage of the child.
20 If the court finds after a contradictory hearing that the child is the genetic child of the
21 gestational mother, the court shall issue an order recognizing her as a legal parent of
22 the child. If any party refuses to submit to such tests, the court may resolve the
23 question of filiation against such party or enforce its order if the rights of others and
24 the interests of justice so require.
25 §2720.15. Finality; time limitations
26 A. A party to the gestational carrier contract may bring an action to annul a
27 Post-Birth Order. However, except as otherwise provided in this Part, no action to
28 annul a Post-Birth Order may be brought except on the grounds of fraud or duress.
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1 B. An action to annul a Post-Birth Order based upon a claim of fraud or
2 duress perpetrated by:
3 (1) Anyone other than an intended parent shall be brought within one year
4 from the date of the signing of the final decree or mailing of the notice of the
5 judgment when required.
6 (2) An intended parent shall be brought within two years from the date of the
7 signing of the final decree or mailing of the notice of the judgment when required.
8 Section 2. R.S. 40:34(B)(1)(a)(viii), (h)(v), (i), and (j) are hereby amended and
9reenacted to read as follows:
10 §34. Vital records forms
11 * * *
12 B. The forms shall be printed and supplied or provided by electronic means
13 by the state registrar and the required contents are:
14 (1) Contents of birth certificate. The certificate of birth shall contain, as a
15 minimum, the following items:
16 (a) Full name of child.
17 * * *
18 (viii) In the case of a child born of a surrogate birth parent who is related by
19 blood or affinity to a biological parent, as a result of an enforceable gestational
20 carrier contract, as provided in R.S. 9:2720, the surname of the child's biological
21 parents shall be the surname of the child.
22 * * *
23 (h)
24 * * *
25 (v) In the case of a child born of a surrogate birth parent who is related by
26 blood or affinity to a biological parent, as a result of an enforceable gestational
27 carrier contract, as provided in R.S. 9:2720, the full name of the biological parent
28 father who is proven to be the father by DNA testing shall be listed as the father.
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1 (i) Maiden name of mother; however, if the child was born of a surrogate
2 birth parent who is related by blood or affinity to a biological parent, as a result of
3 an enforceable gestational carrier contract, as provided in R.S. 9:2720, the maiden
4 name of the biological parent mother who is proven to be the mother by DNA testing
5 shall be listed as the mother and the name of the surrogate birth parent is not
6 required.
7 (j) In the case of a child born of a surrogate birth parent who is related by
8 blood or affinity to a biological parent, as a result of an enforceable gestational
9 carrier contract, as provided in R.S. 9:2720, the biological parents proven to be the
10 mother and father by DNA testing shall be considered the parents of the child.
11 * * *
12 Section 3. R.S. 14:286(D) is hereby amended and reenacted and R.S. 14:286(E) is
13hereby enacted to read as follows:
14 §286. Sale of minor children and other prohibited activities; penalties
15 * * *
16 D.(1) It shall be unlawful for any person to enter into, induce, arrange,
17 procure, knowingly advertise for, or otherwise assist in a gestational carrier contract,
18 whether written or unwritten, that is not in compliance with the requirements
19 provided for in R.S. 9:2718, et seq.
20 (2) No person who is a party to, or acting on behalf of the parties to a
21 gestational carrier contract shall make or agree to make any disbursements in
22 connection with the gestational carrier contract other than the following:
23 (a) Payment of actual medical expenses, including hospital, testing, nursing,
24 midwifery, pharmaceutical, travel, or other similar expenses, incurred by the
25 gestational mother for prenatal care and those medical and hospital expenses
26 incurred incident to birth.
27 (b) Payment of actual expenses incurred for mental health counseling
28 services provided to the gestational mother prior to the birth and up to six months
29 after birth.
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1 (c) Payment of actual lost wages of the gestational mother, not covered under
2 a disability insurance policy, when bed rest has been prescribed for the gestational
3 mother for some maternal or fetal complication of pregnancy and the gestational
4 mother, who is employed, is unable to work during the prescribed period of bed rest.
5 (d) Payment of actual travel costs related to the pregnancy and delivery,
6 court costs, and attorney fees incurred by the gestational mother.
7 (3) It shall be unlawful for any person to enter into, induce, arrange, procure,
8 knowingly advertise for, or otherwise assist in an agreement for genetic gestational
9 carrier, with or without compensation, whether written or unwritten. For purposes
10 of this Section, "genetic gestational carrier" and "compensation" shall have the same
11 meaning as defined in R.S. 9:2718.
12 (4) It shall be unlawful for any person to give or offer payment of money,
13 objects, services, or anything of monetary value to induce any gestational mother,
14 whether or not she is party to an enforceable or unenforceable agreement for genetic
15 gestational carrier or gestational carrier contract, to consent to an abortion as defined
16 in R.S. 40:1061.9.
17 D.E. A person convicted of violating any of the provisions of this Section
18 shall be punished by a fine not to exceed fifty thousand dollars or imprisonment with
19 or without hard labor for not more than ten years, or both.
20 Section 4. Part VII of Chapter 2 of Title 40 of the Louisiana Revised Statutes of
211950, comprised of R.S. 40:93 through 97, is hereby enacted to read as follows:
22 PART VII. GESTATIONAL CARRIER DATA COLLECTION
23 §93. Gestational carrier data collection; purpose
24 The purpose of this Part shall be the compilation of relevant maternal life and
25 health factors and data concerning gestational carrier to the extent that it is
26 authorized by law.
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1 §94. Forms for collection of data
2 The state registrar shall prescribe forms for the collection of information and
3 statistics with respect to enforceable gestational carrier contracts. Such forms shall
4 require but not be limited to the following information:
5 (1) The age, marital status, and state and parish of domicile of the gestational
6 mother.
7 (2) The parish in which the in utero embryo transfer took place.
8 (3) The full name and address of the physician or physicians performing or
9 attending to the following phases of the gestational carrier:
10 (a) In utero embryo transfer.
11 (b) Prenatal and postnatal care.
12 (c) Birth.
13 (d) Miscarriage.
14 (e) Induced abortion.
15 (4) The age, marital status, and state and parish of domicile of the intended
16 mother and father.
17 (5) The medical reason necessitating the gestational carrier.
18 (6) The medical procedures employed in the birth, miscarriage, or
19 termination of pregnancy for medical emergency as provided by R.S. 40:1061.23.
20 (7) The length and weight of the child born as a result of gestational carrier.
21 (8) The length and weight of an unborn child miscarried after the initiation
22 of a gestational carrier.
23 (9) Other significant conditions or health complications of the unborn child
24 and gestational mother.
25 (10) The results of pathological examinations of any unborn child who died
26 as a result of pregnancy complications or termination incidental to a gestational
27 carrier.
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1 §95. Completion of forms; filing with vital records registry
2 The physician performing the in utero embryo transfer or termination of the
3 pregnancy by birth, miscarriage, or abortion shall provide the information required
4 by the provisions of R.S. 40:94. Such completed forms shall be transmitted by the
5 physician to the vital records registry within fifteen days of the performance of the
6 medical procedures.
7 §96. Failure to complete form; penalty
8 The Department of Health and Hospitals shall promulgate by rule the penalty
9 for the failure to complete the forms as provided in R.S. 40:95.
10 §97. Confidentiality
11 The vital statistics records required by this Part and the identities of the
12 parties to a gestational carrier contract shall be confidential and shall not be subject
13 to disclosure, release, or inspection except upon application to a competent court and
14 in conformity with the applicable requirements of confidentiality applicable to
15 adoptions in the Children's Code. The reporting of the data for public health
16 purposes shall redact any identifying information and any public report shall indicate
17 patient numbers as assigned pursuant to rules promulgated by the Department of
18 Health and Hospitals.
19 Section 5. R.S. 44:4.1(B)(26) is hereby amended and reenacted to read as follows:
20 §4.1. Exceptions
21 * * *
22 B. The legislature further recognizes that there exist exceptions, exemptions,
23 and limitations to the laws pertaining to public records throughout the revised
24 statutes and codes of this state. Therefore, the following exceptions, exemptions, and
25 limitations are hereby continued in effect by incorporation into this Chapter by
26 citation:
27 * * *
28 (26) R.S. 40:3.1, 31.14, 31.27, 39.1, 41, 73, 94, 95, 526, 528, 1007, 1098.8,
29 1232.7, 1299.6, 1299.35.10, 1299.44, 1299.85, 1299.87, 1300.14, 1300.54,
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HB NO. 1102
1 1379.1.1(D), 1379.3, 2009.8, 2009.14, 2010.5, 2017.9, 2018, 2019, 2020, 2106,
2 2109.1, 2138, 2532, 2845.1
3 * * *
4 Section 6. R.S. 9:2713 is hereby repealed in its entirety.
5 Section 7. The provisions of Section 3 of this Act shall not apply to contracts entered
6into prior to the effective date of this Act.
7 Section 8. The Louisiana State Law Institute is hereby directed to prepare comments
8to the provisions of this Act.
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)]
HB 1102 Engrossed 2016 Regular Session Bishop
Abstract: Prohibits genetic gestational carrier contracts and certain gestational carrier
contracts, provides for the enforceability of gestational carrier contracts, and
provides for data collection of certain information relative to gestational carrier
contracts.
Present law provides that a contract for gestational carrier 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. 9:2719) repeals present law and provides that a contract for a genetic
gestational carrier shall be absolutely null.
Proposed law (R.S. 9:2720) provides that a gestational carrier contract is only enforceable
if approved by a court before in utero implantation. Further prohibits a gestational carrier
contract for compensation and prohibits a gestational carrier 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 carrier contract is executed.
Proposed law (R.S. 9:2720.2) requires the gestational mother to do all of the following in a
gestational carrier 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.
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HB NO. 1102
(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 carrier 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
carrier 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 carrier contract to seek
court approval of a gestational carrier 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 carrier contract, and requires the court to
issue an Order Preceding Embryo Transfer approving the gestational carrier contract upon
finding all of the following:
(1)All requirements of proposed law regarding gestational carrier 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 carrier 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 carrier 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 carrier contract be held and maintained confidentially.
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HB NO. 1102
Proposed law (R.S. 9:2720.8) provides for the continuing and exclusive jurisdiction of the
court approving a gestational carrier contract for matters relative to a gestational carrier
contract.
Proposed law (R.S. 9:2720.9) allows the intended parents or the gestational mother to
terminate a gestational carrier 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 carrier
contract. Also prohibits the court from terminating a gestational carrier 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 carrier 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 carrier 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 gestational carrier 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 gestational
carrier birth parent to one who "is related by blood or affinity to a biological parent" and
makes changes consistent with proposed law.
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HB NO. 1102
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 carrier contracts under R.S. 9:2718, et seq., or any act by a
person assisting in a genetic gestational carrier 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 carrying. 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 carrier 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.
(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)
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