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.
(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.
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.
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)