SLS 18RS-560 REENGROSSED
2018 Regular Session
SENATE BILL NO. 396
BY SENATOR GARY SMITH (On Recommendation of the Louisiana State Law Institute)
CHILDREN. Provides relative to gestational carrier contracts. (gov sig)
1 AN ACT
2 To amend and reenact R.S. 9:2718, 2718.1(1) and (3), 2720(C) and (D), 2720.2(A)(3), the
3 introductory paragraph of (B), and (B)(4), and 2720.3(A) and the introductory
4 paragraph of (B) and R.S. 40:34.1(B), 34.2(2)(d), 34.5(C) and 34.6, and to repeal
5 R.S. 9:2720.3(B)(4) and (5) and R.S. 40:46.10, relative to gestational carrier
6 contracts; to provide for gestational carrier contract requirements; to provide for
7 enforceability of gestational carrier contracts; to provide for a proceeding to approve
8 a gestational carrier contract; to provide for the required content of birth certificates;
9 to provide for legislative intent; to provide for definitions; and to provide for related
10 matters.
11 Be it enacted by the Legislature of Louisiana:
12 Section 1. R.S. 9:2718, 2718.1(1) and (3), 2720(C) and (D), 2720.2(A)(3), the
13 introductory paragraph of (B), and (B)(4), and 2720.3(A) and the introductory paragraph of
14 (B) are hereby amended and reenacted to read as follows:
15 §2718. Purpose and intent
16 The purpose and intent of this Part Chapter is to regulate gestational
17 surrogacy agreements contracts. The legislature has been guided by, among other
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1 things, the best interest of the children who are born as a result of gestational
2 surrogacy. The legislature finds that it is desirable to assure that the intended parents
3 of every child born through the use of assisted reproductive technology be legal and
4 biological parents of the child. Accordingly, in regulating gestational surrogacy
5 agreements contracts by means of this Part Chapter, the legislature has restricted
6 the range of enforceable gestational surrogacy agreements contracts to those in
7 which the parties who engage the gestational surrogate not only are married to each
8 other, but also create the child using only their own gametes. These compelling state
9 interests justify provisions for filiation to be recognized by a court upon proof that
10 the child is genetically related to both parents, so that the intended parents can
11 bypass the current need to go through extended proceedings to adopt their own child.
12 §2718.1. Definition of terms
13 As used in this Chapter, the following terms shall have the meanings ascribed
14 to them in this Section unless otherwise provided for or unless the context otherwise
15 indicates:
16 (1) "Compensation" means a payment of money, objects, services, or
17 anything else having monetary value. Compensation shall not include reimbursement
18 of actual expenses, as provided for in R.S. 9:2720.5(B)(3), to the gestational carrier
19 or payment for goods or services incurred by the intended parents as a result of the
20 pregnancy and that would not have been incurred but for the pregnancy. The
21 payments provided for in R.S. 9:2720.5(B)(3) shall not be prohibited
22 compensation in connection with a gestational carrier contract.
23 * * *
24 (3) "Genetic gestational carrier" means the process by which a woman who
25 attempts to carry and give birth to a child using her own gametes and either the
26 gametes of a person who intends to parent the child or donor gametes, when there is
27 an agreement a contract to relinquish the custody of and all rights and obligations
28 to the child.
29 * * *
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1 §2720. Enforceability of gestational carrier contract
2 * * *
3 C. No person shall enter into a gestational carrier contract that is for
4 compensation as defined in R.S. 9:2718.1 or that is not in compliance with all of the
5 requirements of this Part. Any such contract executed in the state of Louisiana or any
6 other state shall be absolutely null and unenforceable in the state of Louisiana as
7 contrary to public policy.
8 D. No person shall enter into a gestational carrier contract that requires the
9 gestational carrier to consent to terminate a pregnancy resulting from in utero
10 embryo transfer for any reason, including a prenatal diagnosis of an actual or
11 potential disability, impairment, genetic variation, or any other health condition or
12 a discrimination based on gender, or for the purposes of the reduction of multiple
13 fetuses. Any such provision in a contract executed in the state of Louisiana or any
14 other state shall be absolutely null and unenforceable in the state of Louisiana as
15 contrary to public policy.
16 * * *
17 §2720.2. Contractual requirements
18 A. In an enforceable gestational carrier contract, the gestational carrier shall
19 do all of the following:
20 * * *
21 (3) Certify that prior to executing the gestational carrier contract she has
22 undergone at least two counseling sessions, separated by at least thirty days, with a
23 licensed clinical social worker, licensed psychologist, medical psychologist, licensed
24 psychiatrist, or licensed professional counselor, to discuss the proposed gestational
25 carrier.
26 * * *
27 B. In an enforceable gestational carrier contract, the intended parents shall
28 certify in writing that they do all of the following:
29 * * *
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1 (4) Have a valid will testament or succession plan establishing custody of
2 authentic act naming a tutor for the child should both intended parents predecease
3 die before the birth of the child.
4 * * *
5 §2720.3. Proceeding to approve gestational carrier contract
6 A. Prior to in utero embryo transfer, the intended parents or the gestational
7 carrier and her spouse, if she is married, may shall initiate a summary proceeding in
8 the court exercising jurisdiction over the adoption of minors where the intended
9 parents or the gestational carrier reside, seeking to have the court approve a
10 gestational carrier contract.
11 B. A proceeding to approve a gestational carrier contract shall be maintained
12 approved by the court only if all of the following occur:
13 * * *
14 Section 2. R.S. 40:34.1(B), 34.2(2)(d), 34.5(C), and 34.6 are hereby amended and
15 reenacted to read as follows:
16 §34.1. Original birth certificate; required contents
17 * * *
18 B. In the case of a child born of a surrogate birth parent as a result of an
19 enforceable gestational carrier contract, as provided in R.S. 9:2720, the biological
20 parents shall be considered the parents of the child.
21 §34.2. Original birth certificate; required contents; name of child
22 * * *
23 (2) Surname.
24 * * *
25 (d) In the case of a child born of a surrogate birth parent as a result of an
26 enforceable gestational carrier contract, as provided in R.S. 9:2720, the surname of
27 the child's biological parents shall be the surname of the child.
28 * * *
29 §34.5. Original birth certificate; required contents; name of father
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1 * * *
2 C. In the case of a child born of a surrogate birth parent as a result of an
3 enforceable gestational carrier contract, as provided in R.S. 9:2720, the full name of
4 the biological father shall be listed as the father.
5 * * *
6 §34.6. Original birth certificate; required contents; name of mother
7 The full name of the mother of the child, including her maiden name and
8 current surname, shall be entered on the original birth certificate; however, if the
9 child was born of a surrogate birth parent as a result of an enforceable gestational
10 carrier contract, as provided in R.S. 9:2720, the maiden name of the biological
11 mother shall be listed as the mother.
12 Section 3. R.S. 9:2720.3(B)(4) and (5) are hereby repealed in their entirety.
13 Section 4. R.S. 40:46.10 is hereby repealed in its entirety.
14 Section 5. This Act shall become effective upon signature by the governor or, if not
15 signed by the governor, upon expiration of the time for bills to become law without signature
16 by the governor, as provided by Article III, Section 18 of the Constitution of Louisiana. If
17 vetoed by the governor and subsequently approved by the legislature, this Act shall become
18 effective on the day following such approval.
The original instrument and the following digest, which constitutes no part
of the legislative instrument, were prepared by Ashley E. Menou.
DIGEST
SB 396 Reengrossed 2018 Regular Session Gary Smith
Present law provides the purpose and intent of present law is to regulate gestational
surrogacy agreements and to assure that the intended parents of every child born through the
use of assisted reproductive technology be legal and biological parents of the child.
Proposed law changes "gestational surrogacy agreements" to "gestational surrogacy
contracts" and otherwise retains present law.
Present law defines "compensation", as it relates to gestational surrogacy contracts, as
payment of money, objects, services, or anything else having value. Further provides that
reimbursement of certain expenses to the gestational carrier or payment for goods or services
incurred by the intended parents as a result of the pregnancy and that would not have been
incurred but for the pregnancy shall not be considered compensation.
Proposed law retains present law definition of "compensation", as it relates to gestational
surrogacy contracts, as payment of money, objects, services, or anything else having value.
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Further provides the following payments to the gestational carrier shall not be prohibited
compensation:
(1)Actual medical expenses related to prenatal care and expenses incident to the birth.
(2)Actual expenses incurred for mental health counseling prior to the birth and for up
to six months after birth.
(3)Certain lost wages.
(4)Travel costs related to the pregnancy, delivery, court costs, and attorney fees.
(5)Judicially sanctioned settlement or judgement rendered as a result of the gestational
carrier's death, loss of reproductive organs or capability, or other health related
health complication.
Present law defines "genetic gestational carrier" as the process by which a woman attempts
to carry and give birth to a child using her own gametes and either the gametes of a person
who intends to parent the child or donor gametes, when there is an agreement to relinquish
the custody of and all rights and obligations to the child.
Proposed law changes the definition of "genetic gestational carrier" to a woman who
attempts to carry and give birth to a child using her own gametes and either the gametes of
a person who intends to parent the child or donor gametes, when there is a contract to
relinquish the custody of and all rights and obligations to the child.
Present law provides that no person shall enter into a gestational carrier contract for
compensation or that is not in compliance with applicable provisions of present law and any
such contract shall be absolutely null and unenforceable as contrary to public policy.
Present law provides that no person shall enter into a gestational carrier contract that requires
the carrier to consent to terminate a pregnancy and any such provision shall be absolutely
null and unenforceable as contrary to public policy.
Proposed law retains present law.
Present law requires a gestational carrier to certify that prior to executing the gestational
carrier contract she has undergone at least two counseling sessions with certain mental health
professionals, including a licensed counselor.
Proposed law changes "licensed counselor" to "licensed professional counselor" and
otherwise retains present law.
Present law requires that the intended parents in an enforceable gestational carrier contract
have a valid will or succession plan establishing custody for the child in the event both
intended parents predecease the birth of the child.
Proposed law requires that the intended parents in an enforceable gestational carrier contract
have a testament or authentic act naming a tutor for the child should both intended parents
die before the birth of the child.
Present law provides that prior to in utero embryo transfer, the intended parents or the
gestational carrier and her spouse may initiate a summary proceeding to have a court
approve the gestational carrier contract.
Proposed law requires that the summary proceeding to approve the gestational carrier
contract be initiated prior to the in utero embryo transfer by either the intended parents or
gestational carrier and her spouse and otherwise retains present law.
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Present law provides that a proceeding to approve a gestational carrier contract shall be
maintained only if all of the following occur:
(1)The gestational carrier and each of the intended parents have been domiciled in this
state for at least 180 days.
(2)The intended parents, the gestational carrier, and her spouse if she is married, are all
parties to the proceeding.
(3)A copy of the proposed gestational carrier contract is attached to the motion.
(4)An independent physician who has treated the intended mother submits an affidavit
certifying that in utero embryo transfer is medically necessary. Present law further
provides that "medically necessary" means that the intended mother is infertile or
that pregnancy creates too great a health risk for the intended mother.
Proposed law removes the requirement that the intended mother must be certified infertile
in order to enter into a gestational carrier contract. Further provides that a gestational carrier
contract shall be approved by the court if all of the following occur:
(1)The gestational carrier and each of the intended parents have been domiciled in this
state for at least 180 days.
(2)The intended parents, the gestational carrier, and her spouse if she is married, are all
parties to the proceeding.
(3)A copy of the proposed gestational carrier contract is attached to the motion.
Present law provides that the biological parents of a child born of a surrogate birth parent
as a result of an enforceable gestational carrier contract shall be considered the parents of
the child.
Proposed law retains present law.
Present law provides that a child born of a surrogate birth parent as a result of an enforceable
gestational carrier contract shall have the surname of the biological parents.
Proposed law retains present law.
Present law provides that the full name of the biological father shall be listed on the birth
certificate of a child born of a surrogate birth parent as a result of an enforceable gestational
carrier contract.
Proposed law retains present law.
Present law provides that the maiden name of the biological mother shall be listed as the
mother on the birth certificate of a child born of a surrogate birth parent as a result of an
enforceable gestational carrier contract.
Present law provides that in the case of a child born of a surrogate birth parent who is related
by blood or affinity to a biological parent, the biological parents, proven to be so by DNA
testing, shall be considered the parents of the child.
Proposed law deletes present law.
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Effective upon signature of the governor or lapse of time for gubernatorial action.
(Amends R.S. 9:2718, 2718.1(1) and (3), 2720(C) and (D), 2720.2(A)(3) and (B)(intro para)
and (B)(4), 2720.3(A) and (B)(intro para), R.S. 40:34.1(B), 34.2(2)(d), 34.5(C), and 34.6;
repeals R.S. 9:2720.3(B)(4) and (5) and R.S. 40:46.10)
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