Massachusetts 2023-2024 Regular Session

Massachusetts House Bill H1713 Compare Versions

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1	1	1 of 2
2	2	HOUSE DOCKET, NO. 2348 FILED ON: 1/19/2023
3	3	HOUSE . . . . . . . . . . . . . . . No. 1713
4	4	The Commonwealth of Massachusetts
5	5	_________________
6	6	PRESENTED BY:
7	7	Sarah K. Peake and Hannah Kane
8	8	_________________
9	9	To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
10	10	Court assembled:
11	11	The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:
12	12	An Act to ensure legal parentage equality.
13	13	_______________
14	14	PETITION OF:
15	15	NAME:DISTRICT/ADDRESS :DATE ADDED:Sarah K. Peake4th Barnstable1/11/2023Hannah Kane11th Worcester1/20/2023Adam Scanlon14th Bristol1/23/2023Lindsay N. Sabadosa1st Hampshire1/23/2023Samantha Montaño15th Suffolk1/26/2023Steven Owens29th Middlesex1/26/2023Patricia A. Duffy5th Hampden1/26/2023Mindy Domb3rd Hampshire1/27/2023Susannah M. Whipps2nd Franklin1/27/2023Tram T. Nguyen18th Essex1/27/2023Joanne M. ComerfordHampshire, Franklin and Worcester1/27/2023Ruth B. Balser12th Middlesex1/27/2023Alice Hanlon Peisch14th Norfolk1/30/2023Jack Patrick Lewis7th Middlesex1/30/2023Adrianne Pusateri Ramos14th Essex1/31/2023Jason M. LewisFifth Middlesex1/31/2023David Paul Linsky5th Middlesex2/2/2023Michael P. Kushmerek3rd Worcester2/2/2023 2 of 2
16	16	Tackey Chan2nd Norfolk2/3/2023Kevin G. Honan17th Suffolk2/6/2023Sally P. Kerans13th Essex2/6/2023William J. Driscoll, Jr.7th Norfolk2/7/2023Jon Santiago9th Suffolk2/7/2023Thomas M. Stanley9th Middlesex2/14/2023Mary S. Keefe15th Worcester2/14/2023Tricia Farley-Bouvier2nd Berkshire2/14/2023Paul McMurtry11th Norfolk2/14/2023James C. Arena-DeRosa8th Middlesex2/14/2023Christine P. Barber34th Middlesex2/14/2023Rodney M. Elliott16th Middlesex2/14/2023Adrian C. Madaro1st Suffolk2/14/2023Rebecca L. RauschNorfolk, Worcester and Middlesex3/2/2023Kate Lipper-Garabedian32nd Middlesex3/2/2023Natalie M. Higgins4th Worcester3/2/2023Paul R. FeeneyBristol and Norfolk3/6/2023 1 of 32
17	17	HOUSE DOCKET, NO. 2348 FILED ON: 1/19/2023
18	18	HOUSE . . . . . . . . . . . . . . . No. 1713
19	19	By Representatives Peake of Provincetown and Kane of Shrewsbury, a petition (accompanied by
20	20	bill, House, No. 1713) of Sarah K. Peake, Hannah Kane and others for legislation to provide that
21	21	every child have the same rights and protections under law as any other child without regard to
22	22	the marital status, gender, gender identity, or sexual orientation of the parent or parents. The
23	23	Judiciary.
24	24	The Commonwealth of Massachusetts
25	25	_______________
26	26	In the One Hundred and Ninety-Third General Court
27	27	(2023-2024)
28	28	_______________
29	29	An Act to ensure legal parentage equality.
30	30	Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority
31	31	of the same, as follows:
32	32	1 SECTION 1. The title of chapter 209C of the General Laws is hereby amended by
33	33	2striking out the words “CHILDREN BORN OUT OF WEDLOCK” in that title and inserting in
34	34	3place thereof the following words:-- “NONMARITAL CHILDREN AND PARENTAGE OF
35	35	4CHILDREN”.
36	36	5 SECTION 2. Chapter 209C of the General Laws is hereby amended by inserting after
37	37	6section 1 the following section 1A:- (a) It is the public policy of the Commonwealth that every
38	38	7child has the same rights and protections under law as any other child without regard to the
39	39	8marital status, gender, gender identity, or sexual orientation of the parent or parents or the
40	40	9circumstances of the birth of the child, including whether the child was born as a result of
41	41	10assisted reproduction or surrogacy. (b) a parent-child relationship is established between a person
42	42	11and a child if (i) Birth: the person gives birth to the child, except as otherwise provided in 2 of 32
43	43	12sections 28A-28Q; (ii) Presumption: there is a presumption of parentage under section 6, unless
44	44	13the presumption is overcome in a judicial proceeding or a valid denial of parentage is made; (iii)
45	45	14Adjudication: the individual is adjudicated a parent of the child by a court with jurisdiction; (iv)
46	46	15Adoption: the individual adopts the child pursuant to chapter 210; (v) Acknowledgment: the
47	47	16individual acknowledges parentage of the child under this chapter unless the acknowledgment is
48	48	17rescinded or successfully challenged; (vi) De Facto Parentage: the individual is adjudicated a de
49	49	18facto parent of the child under section 25; (vii) Assisted reproduction: the individual’s parentage
50	50	19of the child is established under section 27; (viii) Surrogacy: the individual’s parentage of the
51	51	20child is established under sections 28A-28Q. (c) For the purpose of this chapter, the term “child
52	52	21born out of wedlock” includes the term nonmarital child; the term “man” or “father” includes a
53	53	22parent of any gender; the term “woman” or “mother” includes the term “parent who gave birth;
54	54	23the term “putative father” includes the term “alleged genetic parent” and does not include a
55	55	24presumed parent, an individual whose parental rights have been terminated or declared not to
56	56	25exist or a donor” any reference to “paternity” includes the term “parentage;” any reference to
57	57	26“nonpaternity” includes the term “nonparentage;” any reference to “voluntary acknowledgement
58	58	27of paternity” includes the term “voluntary acknowledgment of parentage;” and any reference to
59	59	28“husband” or “wife” includes the term “spouse.”
60	60	29 SECTION 3. Section 5 of chapter 209C is hereby amended in line 50 by inserting after
61	61	30the word “chapter” the following sentence:- Voluntary acknowledgments of parentage may also
62	62	31be executed pursuant to this chapter by the person who gave birth and a person who is either a
63	63	32presumed parent pursuant to section 6 or an intended parent pursuant to section 27.
64	64	33 SECTION 4. Section 6 of chapter 209C is hereby amended in line 39 by adding the
65	65	34following subsection:- 3 of 32
66	66	35 (d) A presumption of parentage under this section may be overcome, and competing
67	67	36claims to parentage may be resolved, only by a valid denial of parentage under section 11 of this
68	68	37chapter or as follows:
69	69	38 (1) A presumption of parentage cannot be overcome after the child attains 2 years of age
70	70	39unless the court determines: (i) the presumed parent is not a genetic parent, never resided with
71	71	40the child, and never held out the child as the presumed parent’s child; or (ii) the child has more
72	72	41than 1 presumed parent.
73	73	42 (2) A proceeding to challenge a presumption by an alleged genetic parent who is not a
74	74	43presumed parent may be permitted by a court only if the alleged genetic parent proves, by clear
75	75	44and convincing evidence, that the alleged genetic parent has a substantial parent-child
76	76	45relationship with the child. If the court permits the proceeding, the court shall adjudicate
77	77	46parentage under section 26.
78	78	47 (3) The following rules apply in a proceeding to adjudicate a presumed parent’s
79	79	48parentage of a child if the individual who gave birth to the child is the only other individual with
80	80	49a claim to parentage of the child: (i) If no party to the proceeding challenges the presumed
81	81	50parent’s parentage of the child, the court shall adjudicate the presumed parent to be a parent of
82	82	51the child; (ii) If the presumed parent is identified as a genetic parent of the child and that
83	83	52identification is not successfully challenged, the court shall adjudicate the presumed parent to be
84	84	53a parent of the child; (iii) If the presumed parent is not identified as a genetic parent of the child
85	85	54and the presumed parent or the individual who gave birth to the child challenges the presumed
86	86	55parent’s parentage of the child, the court shall adjudicate the parentage of the child in the best
87	87	56interest of the child based on the factors of section 26. 4 of 32
88	88	57 (4) Subject to other limitations in this part, if in a proceeding to adjudicate a presumed
89	89	58parent’s parentage of a child, another individual in addition to the individual who gave birth to
90	90	59the child asserts a claim to parentage of the child, the court shall adjudicate parentage under
91	91	60section 26.
92	92	61 SECTION 5. Section 11 of chapter 209C is hereby amended in line 2 by inserting after
93	93	62the word “father” the following:- presumed parent or intended parent pursuant to section 27.
94	94	63 SECTION 6. Section 11 of chapter 209C is hereby amended by striking out, in line 3, the
95	95	64words “mother of the child” and inserting in place thereof the following words:- individual who
96	96	65gave birth to the child.
97	97	66 SECTION 7. Section 11 of chapter 209C is hereby amended in lines 21-22 by striking
98	98	67“such putative father and mother and shall have the same force and effect as a judgment of
99	99	68paternity” and inserting the following:- “both parents and shall have the same force and effect as
100	100	69a judgment of parentage”.
101	101	70 SECTION 8. Section 11 of chapter 209C is hereby amended in line 48 by striking “shall”
102	102	71and inserting the following:- may.
103	103	72 SECTION 9. Section 11 of chapter 209C is hereby amended in line 83 by inserting after
104	104	73the word “executed” the following sentence:-A voluntary acknowledgement of parentage that
105	105	74complies with this section and section 5 and is filed with the registrar of vital records and
106	106	75statistics or the court is equivalent to an adjudication of parentage of the child and confers on the
107	107	76acknowledged parent all rights and duties of a parent. The court shall give full faith and credit to
108	108	77a voluntary acknowledgment of parentage that is effective in another state if the
109	109	78acknowledgment was in a signed record and otherwise complies with the laws of the other state. 5 of 32
110	110	79 SECTION 10. Chapter 209C of the General Laws is hereby amended by inserting after
111	111	80section 24 the following section 25:
112	112	81 Section 25. De Facto Parentage
113	113	82 (a) This section shall apply to nonmarital and marital children. A proceeding to establish
114	114	83parentage of a child under this section may be commenced only by an individual who:
115	115	84 (i) is alive when the proceeding is commenced; and
116	116	85 (ii) claims to be a de facto parent of the child.
117	117	86 (b) An individual who claims to be a de facto parent of a child shall commence a
118	118	87proceeding to establish parentage of a child under this section:
119	119	88 (i) before the child attains 18 years of age; and
120	120	89 (ii) while the child is alive.
121	121	90 (c) The following rules govern standing of an individual who claims to be a de facto
122	122	91parent of a child to maintain a proceeding under this section:
123	123	92 (i) The individual shall file an initial verified pleading alleging specific facts that support
124	124	93the claim to parentage of the child asserted under this section. The verified pleading must be
125	125	94served on all parents and legal guardians of the child and any other party to the proceeding.
126	126	95 (ii) An adverse party, parent, or legal guardian may file a pleading in response to the
127	127	96pleading filed under paragraph (i). A responsive pleading must be verified and served on parties
128	128	97to the proceeding. 6 of 32
129	129	98 (iii) The court shall determine, based on the pleadings under subsections c(i) and c(ii) ,
130	130	99whether the individual has alleged facts sufficient to satisfy by a preponderance of the evidence
131	131	100each of the requirements of paragraphs (i) through (vii) of subsection (d). Upon request made by
132	132	101a party entitled to notice, the court may hold a hearing on the issue of standing. Whether the
133	133	102hearing is an evidentiary hearing is in the discretion of the court. The court may enter an interim
134	134	103order concerning contact between the child and an individual with standing seeking adjudication
135	135	104under this section as a de facto parent of the child.
136	136	105 (d) In a proceeding to adjudicate parentage of an individual who claims to be a de facto
137	137	106parent of the child, if there is only 1 other individual who is a parent or has a claim to parentage
138	138	107of the child, the court shall adjudicate the individual who claims to be a de facto parent to be a
139	139	108parent of the child if the individual demonstrates by clear-and convincing evidence that:
140	140	109 (i) the individual resided with the child as a regular member of the child’s household for a
141	141	110significant period of time based on the age of the child;
142	142	111 (ii) the individual engaged in consistent caretaking of the child which may include
143	143	112regularly taking responsibility for the child’s needs such as care, guidance, education and health,
144	144	113and making day-to-day decisions regarding the child individually or cooperatively with another
145	145	114parent;
146	146	115 (iii) the individual undertook full and permanent responsibilities of a parent of the child
147	147	116without expectation or payment of financial compensation. If an individual undertook the
148	148	117responsibilities of a parent of the child due to a parent of that child being deployed in the
149	149	118military, there shall be a presumption that such arrangements were intended to be temporary for
150	150	119the duration of the parent’s military deployment; 7 of 32
151	151	120 (iv) the individual held out the child as the individual’s child;
152	152	121 (v) the individual established a bonded and dependent relationship with the child which is
153	153	122parental in nature;
154	154	123 (vi) a parent of the child fostered or supported the bonded and dependent relationship
155	155	124required under paragraph (v). Consent to guardianship, execution of a caregiver affidavit,
156	156	125execution of a Military Family Care Plan, or other caretaking agreement by a parent serving in
157	157	126the military shall not be considered as evidence that a parent fostered or supported the bonded
158	158	127and dependent relationship required under (v); and
159	159	128 (vii) continuing the relationship between the individual and the child is in the best interest
160	160	129of the child. In considering this factor, the court shall consider evidence of past or present abuse
161	161	130by the individual toward a parent or the child as a factor contrary to the best interests of the child.
162	162	131For the purpose of this section, “abuse” shall have the same meaning as provided in section 31 of
163	163	132chapter 208 and section 10(e) of this chapter.
164	164	133 (e) A parent of the child may use evidence of duress, coercion, or threat of harm to
165	165	134 contest an allegation that the parent fostered or supported a bonded and dependent
166	166	135relationship as
167	167	136 provided in subsection (d)(vi) of this section or that continuing the relationship between
168	168	137the individual and the child is in the best interests of the child as provided in subsection d(vii) of
169	169	138this section. Such evidence may include, but not be limited to, whether, within the prior ten
170	170	139years, the individual seeking to be adjudicated a de facto parent (1) has been convicted of a crime
171	171	140involving violence against a parent of the child or the child including but not limited to rape, 8 of 32
172	172	141assault with intent to commit rape, indecent assault and battery, assault or assault and battery on
173	173	142a family or household member; (2) was the subject of a final abuse prevention order pursuant to
174	174	143Chapter 209A or section 34B or 34C of Chapter 208 because the individual was found to have
175	175	144committed abuse against the child or a parent of the child; (3) was substantiated for abuse against
176	176	145the child by the Department of Children and Families; or (4) there exists other credible evidence
177	177	146of abuse by the individual against a parent of the child or the child.
178	178	147 (f) Subject to other limitations in this section, if in a proceeding to adjudicate parentage
179	179	148of an individual who claims to be a de facto parent of the child, there is more than 1 other
180	180	149individual who is a parent or has a claim to parentage of the child and the court determines that
181	181	150the requirements of subsection (d) are satisfied, the court shall adjudicate parentage under section
182	182	15126 of this chapter.
183	183	152 (g) The adjudication of an individual as a de facto parent under this section does not
184	184	153disestablish the parentage of any other parent.
185	185	154 SECTION 11. Chapter 209C of the General Laws is hereby amended by inserting the
186	186	155following section 26:
187	187	156 Section 26. Competing Claims of Parentage
188	188	157 (a) In a proceeding to adjudicate competing claims of, or challenges under this chapter to,
189	189	158parentage of a child by 2 or more individuals, the court shall adjudicate parentage in the best
190	190	159interest of the child, based on:
191	191	160 (i) the age of the child; 9 of 32
192	192	161 (ii) the length of time during which each individual assumed the role of parent of the
193	193	162child;
194	194	163 (iii) the nature of the relationship between the child and each individual;
195	195	164 (iv) the harm to the child if the relationship between the child and each individual is not
196	196	165recognized;
197	197	166 (v) the basis for each individual’s claim to parentage of the child; and
198	198	167 (vi) other equitable factors arising from the disruption of the relationship between the
199	199	168child and each individual or the likelihood of other harm to the child.
200	200	169 (b) If an individual challenges parentage based on the results of genetic testing, in
201	201	170addition to the factors listed in subsection (a), the court shall consider:
202	202	171 (i) the facts surrounding the discovery that the individual might not be a genetic parent of
203	203	172the child; and
204	204	173 (ii) the length of time between the time that the individual was placed on notice that the
205	205	174individual might not be a genetic parent and the commencement of the proceeding.
206	206	175 (c) The court may adjudicate a child to have more than 2 parents if the court finds that it
207	207	176is in the best interests of the child to do so. A finding of best interests of the child under this
208	208	177subsection does not require a finding of unfitness of any parent or person seeking an adjudication
209	209	178of parentage.
210	210	179 SECTION 12. Chapter 209C of the General Laws is hereby amended by inserting the
211	211	180following section 27: 10 of 32
212	212	181 Section 27. Parentage by Assisted Reproduction
213	213	182 (a)This section shall apply to nonmarital and marital children. This section shall not
214	214	183apply to the birth of a child conceived by sexual intercourse or assisted reproduction by
215	215	184surrogacy agreement under sections 28A-28Q.
216	216	185 (b)Venue for a proceeding to adjudicate parentage under this section is in the county
217	217	186of this state in which: (i) the child resides or is or will be born; (ii) any parent or intended parent
218	218	187resides; or (iii) a proceeding has been commenced for administration of the estate of an
219	219	188individual who is or may be a parent under this chapter.
220	220	189 (c)The following terms shall have the following meanings:
221	221	190 (i)“Assisted reproduction”, a method of causing pregnancy other than sexual
222	222	191intercourse and includes, but is not limited to, artificial insemination as well as intrauterine,
223	223	192intracervical, or vaginal insemination; donation of gametes; donation of embryos; in vitro
224	224	193fertilization and transfer of embryos; and intracytoplasmic sperm injection.
225	225	194 (ii)“Donor”, an individual who provides a gamete or embryo intended for assisted
226	226	195reproduction or gestation, whether or not for consideration. This term does not include a person
227	227	196who consents to assisted reproduction with the intent to be a parent of the resulting child.
228	228	197 (iii)“Intended parent”, an individual, whether married or unmarried, who manifests an
229	229	198intent to be legally bound as a parent of a child resulting from assisted reproduction.
230	230	199 (d)A donor is not a parent of a child conceived through assisted reproduction by
231	231	200virtue of the donor’s genetic connection. A donor may not establish the donor's parentage by 11 of 32
232	232	201signing an acknowledgment of parentage pursuant to this chapter. A donor shall not be entitled to
233	233	202notice.
234	234	203 (e)An individual who consents to assisted reproduction under subsection (f) with the
235	235	204intent to be a parent of a child conceived by the assisted reproduction is a parent of the child.
236	236	205 (f)Consent to assisted reproduction described in subsection (e) may be established
237	237	206either by a record signed by the individual giving birth to a child conceived by assisted
238	238	207reproduction and by an individual who intends to be a parent of the child before, on, or after the
239	239	208birth of the child or if a court finds by a preponderance of the evidence that (i) prior to
240	240	209conception or birth of the child, the parties agreed that they would be parents of the child; or (ii)
241	241	210the individual who seeks to be a parent of the child voluntarily participated in and consented to
242	242	211the assisted reproduction that resulted in the conception of the child.
243	243	212 (g)Except as otherwise provided herein, an individual who, at the time of a child’s
244	244	213birth, is the spouse of the person who gave birth to the child by assisted reproduction may not
245	245	214challenge the spouse’s parentage of the child unless not later than 2 years after the birth of the
246	246	215child, the spouse commences a proceeding to adjudicate their own parentage of the child, and the
247	247	216court finds the spouse did not consent to the assisted reproduction, before, on, or after birth of the
248	248	217child, or withdrew consent under subsection i. A proceeding by a spouse to challenge their own
249	249	218parentage of a child born by assisted reproduction may be commenced at any time if the court
250	250	219determines that the spouse neither provided a gamete for, nor consented to, the assisted
251	251	220reproduction; the spouse and the person who gave birth to the child have not cohabited since the
252	252	221probable time of assisted reproduction; and the spouse never openly held out the child as their
253	253	222child. This subsection applies to a spouse’s dispute of parentage even if the spouse’s marriage is 12 of 32
254	254	223declared invalid after assisted reproduction occurs. The person giving birth shall not challenge a
255	255	224spouse’s parentage under this section.
256	256	225 (h)A married individual who has commenced an action for divorce may, after at least
257	257	22660 days has elapsed since service of the complaint, proceed with assisted reproduction pursuant
258	258	227to this section and the spouse shall not be a parent of any child born as a result of the assisted
259	259	228reproduction unless the spouse consents in a record to be a parent of a child born as a result of
260	260	229assisted reproduction after commencement of a divorce action. A married individual proceeding
261	261	230with assisted reproduction pursuant to this section shall not utilize gametes of the spouse unless
262	262	231the spouse consents in a record to the use of the spouse’s gametes for assisted reproduction by
263	263	232the married person after commencement of a divorce action.
264	264	233 (i)An individual who consents under subsection e to assisted reproduction may
265	265	234withdraw consent any time before a transfer or implantation of gametes or embryos that results
266	266	235in a pregnancy, by giving notice in a record of the withdrawal of consent to the person who
267	267	236agreed to give birth to a child conceived by assisted reproduction and to any clinic or health-care
268	268	237provider who may be facilitating the assisted reproduction. Failure to give notice to a clinic or
269	269	238health-care provider does not affect a determination of parentage under this section. An
270	270	239individual who withdraws consent under this subsection is not a parent of the child under this
271	271	240subsection.
272	272	241 (j)(i)If an individual who intends to be a parent of a child conceived by assisted
273	273	242reproduction dies during the period between the transfer or implantation of a gamete or embryo
274	274	243and the birth of the child, the individual’s death does not preclude the establishment of the
275	275	244individual’s parentage of the child if the individual otherwise would be a parent of the child 13 of 32
276	276	245under this chapter. (ii) If an individual who consented in a record to assisted reproduction by a
277	277	246person who agreed to give birth to a child dies before a transfer or implantation of gametes or
278	278	247embryos, the deceased individual is a parent of a child conceived by the assisted reproduction
279	279	248only if either the individual consented in a record that if assisted reproduction were to occur after
280	280	249the death of the individual, the individual would be a parent of the child; or the individual’s
281	281	250intent to be a parent of a child conceived by assisted reproduction after the individual’s death is
282	282	251established by a preponderance of the evidence; and either the embryo is in utero not later than
283	283	25236 months after the individual’s death; or the child is born not later than 45 months after the
284	284	253individual’s death.
285	285	254 (k)If due to a laboratory error the child is not genetically related to either the
286	286	255intended parent or parents or any donor who donated to the intended parent or parents, the
287	287	256intended parent or parents are the parents of the child unless otherwise determined by the court.
288	288	257 (l)Genetic testing, including genetic marker testing pursuant to section 11 of chapter
289	289	258209C, shall not be used (i) to challenge the parentage of an individual who is a parent under this
290	290	259section; or (ii) to establish the parentage of an individual who is a donor.
291	291	260 (m)(i) An individual giving birth or an individual who is or claims to be a parent
292	292	261under this section may commence a proceeding prior to or after the birth of a child to obtain a
293	293	262judgment (a) Declaring that the intended parent or parents are the parent or parents of the
294	294	263resulting child immediately upon birth of the child and ordering that parental rights and
295	295	264responsibilities vest exclusively in the intended parent or parents immediately upon birth of the
296	296	265child; and (b) Designating the contents of the birth certificate and directing the department of
297	297	266public health to designate the intended parent or parents as the parent or parents of the resulting 14 of 32
298	298	267child. (ii) A judgment issued before the birth of the resulting child does not take effect unless and
299	299	268until the birth of the resulting child. Nothing in this subsection shall be construed to limit the
300	300	269court’s authority to issue other orders under any other provision of the general laws. (iii) Neither
301	301	270the state, the department of public health nor the hospital where the child is or expected to be
302	302	271born shall be a necessary party to a proceeding under this section. (iv) The burden of proof in
303	303	272proceedings under this section shall be by a preponderance of the evidence.
304	304	273 (n) On request of a party, the court may close a proceeding under this article to the
305	305	274general public. All complaints, pleadings, papers or documents filed pursuant to this section,
306	306	275including docket entries, shall not be available for inspection, unless a judge of probate and
307	307	276family court of the county where such records are kept, for good cause shown, shall otherwise
308	308	277order or unless requested by the child or the parties. All such complaints, pleadings, papers or
309	309	278documents shall be segregated.
310	310	279 (o)In a proceeding under this section, the court shall issue a final judgment
311	311	280adjudicating whether a person alleged or claiming to be a parent is the parent of a child. On
312	312	281request of a party and consistent with law of this state other than this section, the court in a
313	313	282proceeding under this section may order the name of the child changed. If the final judgment is at
314	314	283variance with the child’s birth certificate, the court shall order the department of public health to
315	315	284issue an amended birth certificate.
316	316	285 SECTION 13. Chapter 209C of the General Laws is hereby amended by inserting after
317	317	286section 27 the following sections:
318	318	287 Section 28A. Parentage by Consent to Surrogacy Agreement 15 of 32
319	319	288 (a)This section shall apply to nonmarital and marital children. This section shall not
320	320	289apply to the birth of a child conceived by sexual intercourse.
321	321	290 (b) Venue for proceedings under sections 28A through 28Q is in the county of this
322	322	291state in which: (i) the child resides or is born or expected to be born; (ii) a parent or intended
323	323	292parent resides; (iii) an individual acting as a surrogate resides; or (iv) a proceeding has been
324	324	293commenced for administration of the estate of an individual who is or may be a parent under this
325	325	294chapter.
326	326	295 (c)The following terms shall have the following meanings:
327	327	296 (i)“Assisted reproduction”, a method of causing pregnancy other than sexual
328	328	297intercourse and includes, but is not limited to, artificial insemination as well as intrauterine,
329	329	298intracervical, or vaginal insemination; donation of gametes; donation of embryos; in vitro
330	330	299fertilization and transfer of embryos; and intracytoplasmic sperm injection.
331	331	300 (ii)“Intended parent”, an individual, whether married or unmarried, who manifests an
332	332	301intent to be legally bound as a parent of a child resulting from assisted reproduction.
333	333	302 (iii)“Genetic surrogate”, an individual who is at least 21 years of age, is not an
334	334	303intended parent and who agrees to become pregnant through assisted reproduction using the
335	335	304individual’s own gamete, under a genetic surrogacy agreement as provided in this chapter.
336	336	305 (iv)“Gestational surrogate”, an individual who is at least 21 years of age, is not an
337	337	306intended parent and who agrees to become pregnant through assisted reproduction using gametes
338	338	307that are not the individual’s own, under a gestational surrogacy agreement as provided in this
339	339	308chapter. 16 of 32
340	340	309 (v)“Surrogacy agreement”, an agreement between one or more intended parents and
341	341	310an individual who is not an intended parent in which the person agrees to become pregnant
342	342	311through assisted reproduction and which provides that each intended parent is a parent of a child
343	343	312conceived under the agreement. Unless otherwise specified, surrogacy agreement refers to both a
344	344	313gestational surrogacy agreement and a genetic surrogacy agreement.
345	345	314 Section 28B. Eligibility
346	346	315 (a)To execute an agreement to act as a gestational or genetic surrogate, an individual
347	347	316shall: (i) be at least 21 years of age; (ii) previously have given birth to at least one child; (iii)
348	348	317complete a medical evaluation related to the surrogacy arrangement by a licensed medical
349	349	318doctor; (iv) complete a mental health consultation by a licensed mental health professional; and
350	350	319(v) have independent legal representation of the individual’s choice throughout the surrogacy
351	351	320agreement regarding the terms of the surrogacy agreement and the potential legal consequences
352	352	321of the agreement and that is paid for by the intended parent or parents.
353	353	322 (b)To execute a surrogacy agreement as an intended parent, whether or not
354	354	323genetically related to the child, an individual shall: (i) be at least 21 years of age; (ii) complete a
355	355	324mental health consultation by a licensed mental health professional; and (iii) have independent
356	356	325legal representation of the intended parent’s choice throughout the surrogacy agreement
357	357	326regarding the terms of the surrogacy agreement and the potential legal consequences of the
358	358	327agreement.
359	359	328 Section 28C. Process Requirements
360	360	329 A surrogacy agreement shall be executed in compliance with the following rules: 17 of 32
361	361	330 (a)At least 1 party shall be a resident of the Commonwealth or, if no party is a
362	362	331resident of the Commonwealth, at least 1 medical evaluation or procedure or mental health
363	363	332consultation under the agreement shall occur in this state, or the birth is anticipated to or does
364	364	333occur in this state.
365	365	334 (b)An individual acting as a surrogate and each intended parent shall meet the
366	366	335requirements of section 28B.
367	367	336 (c)Each intended parent, the individual acting as surrogate, and spouse, if any, of the
368	368	337individual acting as surrogate shall be parties to the agreement.
369	369	338 (d)The agreement shall be in a record signed by each party listed in paragraph (c).
370	370	339 (e)The individual acting as a surrogate and each intended parent shall receive a copy
371	371	340of the agreement.
372	372	341 (f)The signature of each party to the agreement shall be attested by a notary or
373	373	342witnessed. (g) The individual acting as surrogate and, if married, the spouse of the individual
374	374	343acting as surrogate and the intended parent or parents shall have independent legal representation
375	375	344throughout the surrogacy agreement regarding the terms of the surrogacy agreement and the
376	376	345potential legal consequences of the agreement paid for by the intended parent or parents, and
377	377	346each counsel shall be identified in the surrogacy agreement. A single attorney for the individual
378	378	347acting as surrogate and the individual’s spouse, if married, and a single attorney for the intended
379	379	348parents is sufficient to meet this requirement, provided the representation otherwise conforms to
380	380	349the Rules of Professional Conduct. 18 of 32
381	381	350 (h)The intended parent or parents shall pay for independent legal representation for
382	382	351the individual acting as surrogate and the individual’s spouse, if any.
383	383	352 (i)The agreement shall be executed before a medical procedure occurs related to
384	384	353attempting to achieve a pregnancy in the individual acting as surrogate, other than the medical
385	385	354evaluation and mental health consultation required by section 28B.
386	386	355 Section 28D. Agreement Content Requirements
387	387	356 A surrogacy agreement shall comply with the following requirements:
388	388	357 (a)An individual acting as surrogate agrees to attempt to become pregnant by means
389	389	358of assisted reproduction.
390	390	359 (b)Except as otherwise provided in sections 28J, 28N, and 28O, the individual acting
391	391	360as surrogate and the surrogate’s spouse or former spouse, if any, have no claim to parentage of a
392	392	361child conceived by assisted reproduction under the surrogacy agreement.
393	393	362 (c)The surrogate’s spouse, if any, shall acknowledge and agree to comply with the
394	394	363obligations imposed on the individual acting as surrogate by the surrogacy agreement.
395	395	364 (d)Except as otherwise provided in sections 28H, 28K, 28N, and 28O, the intended
396	396	365parent or, if there are 2 intended parents, each one jointly and severally, immediately on birth of
397	397	366the child shall be the exclusive parent or parents of the child, regardless of the number of
398	398	367children born or gender or condition of each child.
399	399	368 (e)Except as otherwise provided in sections 28H, 28K, 28N, and 28O, the intended
400	400	369parent or, if there are 2 intended parents, each parent jointly and severally, immediately on birth 19 of 32
401	401	370of the child shall assume responsibility for the financial support of the child, regardless of the
402	402	371number of children born or the gender or condition of each child.
403	403	372 (f)The intended parent or parents are liable, and the surrogacy agreement shall
404	404	373include information providing that the intended parent or parents shall be responsible for paying,
405	405	374for the surrogacy-related expenses of the individual acting as surrogate, including expenses for
406	406	375health care provided for assisted reproduction, prenatal care, labor and delivery and for the
407	407	376medical expenses of the resulting child that are not paid by insurance. This subsection shall not
408	408	377be construed to supplant any health insurance coverage that is otherwise available to the
409	409	378individual acting as surrogate or an intended parent for the coverage of health care costs. This
410	410	379subsection shall not change the health insurance coverage of the individual acting as surrogate or
411	411	380the responsibility of the insurance company to pay benefits under a policy that covers an
412	412	381individual acting as surrogate.
413	413	382 (g)The surrogacy agreement shall not infringe on the rights of the individual acting
414	414	383as surrogate to make all health and welfare decisions regarding the person, the person's body and
415	415	384the person's pregnancy throughout the duration of the surrogacy arrangement, including during
416	416	385attempts to become pregnant, pregnancy, delivery and post-partum. The agreement shall not
417	417	386infringe upon the right of the individual acting as surrogate to autonomy in medical decision
418	418	387making by, including, but not limited to, requiring the individual acting as surrogate to undergo a
419	419	388scheduled, nonmedically indicated caesarean section or to undergo multiple embryo transfer.
420	420	389Except as otherwise provided by law, any written or oral agreement purporting to waive or limit
421	421	390the rights described in this subsection are void as against public policy. 20 of 32
422	422	391 (h) The surrogacy agreement shall include information about each party’s right under
423	423	392this article to terminate the surrogacy agreement.
424	424	393 (i)A right created under a surrogacy agreement is not assignable and there is no
425	425	394third- party beneficiary of the agreement other than the child.
426	426	395 (j)A surrogacy agreement may provide for (i) payment of consideration and
427	427	396reasonable expenses and (ii) reimbursement of specific expenses if the agreement is terminated
428	428	397under this chapter.
429	429	398 Section 28E. Effect of subsequent change of marital status on agreement
430	430	399 Unless a surrogacy agreement expressly provides otherwise:
431	431	400 (a)The marriage of an individual acting as surrogate after the surrogacy agreement is
432	432	401signed by all parties shall not affect the validity of the agreement, the spouse’s consent to the
433	433	402surrogacy agreement is not required, and the surrogate’s spouse is not a presumed parent of a
434	434	403child conceived by assisted reproduction under the surrogacy agreement.
435	435	404 (b) The divorce or annulment of the individual acting as surrogate after the surrogacy
436	436	405agreement is signed by all parties shall not affect the validity of the surrogacy agreement.
437	437	406 (c) The marriage of an intended parent after the agreement is signed by all parties
438	438	407shall not affect the validity of a surrogacy agreement, the consent of the spouse of the intended
439	439	408parent is not required, and the spouse of the intended parent is not, based on the surrogacy
440	440	409agreement, a parent of a child conceived by assisted reproduction under the surrogacy
441	441	410agreement. 21 of 32
442	442	411 (d)The divorce or annulment of an intended parent after the surrogacy agreement is
443	443	412signed by all parties shall not affect the validity of the surrogacy agreement and the intended
444	444	413parents are the parents of the child.
445	445	414 Section 28F. Exclusive Continuing Jurisdiction
446	446	415 During the period after the execution of a surrogacy agreement until the occurrence of the
447	447	416earlier of the date of termination of a surrogacy agreement pursuant to the agreement terms or 90
448	448	417days after the birth of a child conceived by assisted reproduction under the surrogacy agreement,
449	449	418a court of this state conducting a proceeding under this chapter has exclusive, continuing
450	450	419jurisdiction over all matters arising out of the agreement. This section does not give the court
451	451	420jurisdiction over a child custody or child support proceeding if jurisdiction is not otherwise
452	452	421authorized by the law of this state other than this chapter.
453	453	422 Section 28G. Termination of Gestational Surrogacy Agreement
454	454	423 (a) A party to a gestational surrogacy agreement may terminate the agreement, at any
455	455	424time before an embryo transfer, by giving notice of termination in a record to all other parties. If
456	456	425an embryo transfer does not result in a pregnancy, a party may terminate the agreement at any
457	457	426time before a subsequent embryo transfer.
458	458	427 (b) Unless a gestational surrogacy agreement provides otherwise, on termination of the
459	459	428agreement under subsection (a), the parties are released from the agreement, except that each
460	460	429intended parent remains responsible for expenses that are reimbursable under the agreement and
461	461	430incurred by the individual acting as gestational surrogate through the date of termination of the
462	462	431agreement. 22 of 32
463	463	432 (c) Except in a case involving fraud, neither an individual acting as gestational surrogate
464	464	433nor the surrogate’s spouse or former spouse of the person acting as surrogate, if any, is liable to
465	465	434the intended parent or parents for a penalty or liquidated damages, for terminating a gestational
466	466	435surrogacy agreement under this section.
467	467	436 Section 28H. Parentage under gestational surrogacy agreement
468	468	437 (a) Except as otherwise provided in subsection (c) or section 28I(b) or 28K, on birth of a
469	469	438child conceived by assisted reproduction under a gestational surrogacy agreement, each intended
470	470	439parent is, by operation of law, a parent of the child. Parental rights shall vest exclusively in the
471	471	440intended parent or parents immediately upon birth of the resulting child.
472	472	441 (b) Except as otherwise provided in subsection (c) or section 28K, neither an individual
473	473	442acting as gestational surrogate nor the surrogate’s spouse or former spouse, if any, is a parent of
474	474	443the child.
475	475	444 (c) If a child is alleged to be a genetic child of the individual who agreed to be a
476	476	445gestational surrogate, the court shall, upon finding sufficient evidence, order genetic testing of
477	477	446the child. If the child is a genetic child of the individual who agreed to be a gestational surrogate,
478	478	447parentage shall be determined in accordance with sections 1 through 27 of this chapter.
479	479	448 (d) Except as otherwise provided in subsection (c) or subsection (b) of section 28I or
480	480	449section 28J, if, due to a clinical or laboratory error, a child conceived by assisted reproduction
481	481	450under a gestational surrogacy agreement is not genetically related to an intended parent or a
482	482	451donor who donated to the intended parent or parents, each intended parent, and not the individual
483	483	452acting as gestational surrogate and the surrogate’s spouse or former spouse, if any, is a parent of
484	484	453the child. 23 of 32
485	485	454 Section 28I. Parentage of deceased intended parent under gestational surrogacy
486	486	455agreement
487	487	456 (a) Section 28H applies to an intended parent even if the intended parent died during the
488	488	457period between the transfer of a gamete or embryo and the birth of the child.
489	489	458 (b) Except as otherwise provided in section 28K, an intended parent is not a parent of a
490	490	459child conceived by assisted reproduction under a gestational surrogacy agreement if the intended
491	491	460parent dies before the transfer of a gamete or embryo unless: (i) the surrogacy agreement
492	492	461provides otherwise; and (ii) the transfer of a gamete or embryo occurs not later than 36 months
493	493	462after the death of the intended parent or birth of the child occurs not later than 45 months after
494	494	463the death of the intended parent.
495	495	464 Section 28J. Judgment of parentage under gestational surrogacy agreement
496	496	465 (a) Except as otherwise provided in subsection (c) of section 28H or section 28K, before,
497	497	466on or after the birth of a child conceived by assisted reproduction under a gestational surrogacy
498	498	467agreement, any party to the agreement may commence a proceeding for a judgment of parentage:
499	499	468 (1) declaring that each intended parent is a parent of the child and ordering that parental
500	500	469rights and duties vest immediately on the birth of the child exclusively in each intended parent;
501	501	470 (2) declaring that the individual acting as gestational surrogate and the surrogate’s spouse
502	502	471or former spouse, if any, are not the parents of the child;
503	503	472 (3) designating the content of the birth record in accordance with chapter 46 and directing
504	504	473the department of public health to designate each intended parent as a parent of the child; 24 of 32
505	505	474 (4) to protect the privacy of the child and the parties, declaring that the court record and
506	506	475related pleadings shall be impounded in accordance with this section;
507	507	476 (5) if necessary, that the child be surrendered to the intended parent or parents;
508	508	477 (6) if necessary, that the hospital where the child will be or has been born, treat the
509	509	478intended parent(s) as the sole legal parent(s) for the purpose of naming and medical decisions;
510	510	479and
511	511	480 (7) for other relief the court determines necessary and proper.
512	512	481 (b) The court may issue an order or judgment under subsection (a) before and/or after the
513	513	482birth of the child, as requested by the parties.
514	514	483 (c) Neither this state or the department of public health nor any town clerk nor the
515	515	484hospital where the child is to be born or is born is a necessary party to a proceeding under
516	516	485subsection (a). Any party to the surrogacy agreement not joining in the action shall be provided
517	517	486with notice of the proceeding.
518	518	487 (d) A complaint under this section shall include: (i) sworn affidavits of the parties to the
519	519	488surrogacy agreement and the assisted reproductive physician demonstrating the intent of the
520	520	489parties for the intended parent or parents to be the sole legal parent or parents of the child and
521	521	490that the child was born pursuant to assisted reproduction and (ii) certifications from the attorneys
522	522	491representing the intended parent(s) and the individual acting as gestational surrogate that the
523	523	492requirements of sections 28B, 28C, and 28D have been met. A complaint supported by such
524	524	493affidavits and certifications shall be sufficient to establish parentage, and a hearing shall not be 25 of 32
525	525	494required unless the court requires additional information which cannot reasonably be ascertained
526	526	495without a hearing.
527	527	496 (e) Upon a finding that the complaint satisfies subsection (d), a court shall expeditiously,
528	528	497but no later than sixty (60) days from the docketing of the complaint, issue a judgment of
529	529	498parentage. Such parentage judgments issued under this section shall conclusively establish or
530	530	499affirm, where applicable, the parent-child relationship.
531	531	500 (f) In the event the certification required by subsection (d) of this section cannot be made
532	532	501because of a technical or nonmaterial deviation from the requirements of sections 28B, 28C, and
533	533	50228D of this chapter, the court may nevertheless enforce the agreement and issue a judgment of
534	534	503parentage if the court determines the agreement is in substantial compliance with the
535	535	504requirements of said sections.
536	536	505 (g) On request of a party, the court may close a proceeding under this section to the
537	537	506general public. All complaints, pleadings, papers or documents filed pursuant to this section,
538	538	507including docket entries, shall not be available for inspection, unless a judge of probate and
539	539	508family court of the county where such records are kept, for good cause shown, shall otherwise
540	540	509order or unless requested by the child or the parties. All such complaints, pleadings, papers or
541	541	510documents shall be segregated.
542	542	511 Section 28K. Effect of gestational surrogacy agreement
543	543	512 (a) A gestational surrogacy agreement that substantially complies with sections 28B,
544	544	51328C, and 28D is enforceable. 26 of 32
545	545	514 (b) If a child was conceived by assisted reproduction under a gestational surrogacy
546	546	515agreement that does not substantially comply with sections 28B, 28C, and 28D, the court shall
547	547	516determine the rights and duties of the parties to the agreement consistent with the intent of the
548	548	517parties at the time of execution of the agreement. Each party to the agreement and any individual
549	549	518who at the time of the execution of the agreement was a spouse of a party to the agreement has
550	550	519standing to maintain a proceeding to adjudicate an issue related to the enforcement of the
551	551	520agreement.
552	552	521 (c) Except as expressly provided in a gestational surrogacy agreement or subsection (d)
553	553	522or (e) of this section, if the agreement is breached by the individual acting as gestational
554	554	523surrogate or 1 or more intended parents, the non-breaching party is entitled to the remedies
555	555	524available at law or in equity.
556	556	525 (d) Specific performance is not a remedy available for breach by an individual acting as
557	557	526gestational surrogate of a provision in the agreement that the individual acting as gestational
558	558	527surrogate be impregnated, terminate or not terminate a pregnancy, or submit to medical
559	559	528procedures.
560	560	529 (e) Except as otherwise provided in subsection (d), if an intended parent is determined to
561	561	530be a parent of the child, specific performance is a remedy available for:
562	562	531 (i) breach of the agreement by an individual acting as gestational surrogate which
563	563	532prevents the intended parent from exercising immediately on birth of the child the full rights of
564	564	533parentage; or 27 of 32
565	565	534 (ii) breach by the intended parent which prevents the intended parent’s acceptance,
566	566	535immediately on birth of the child conceived by assisted reproduction under the agreement, of the
567	567	536duties of parentage.
568	568	537 Section 28L. Requirements to validate genetic surrogacy agreement
569	569	538 (a) Except as otherwise provided in section 28O, a genetic surrogacy agreement shall be
570	570	539validated by a probate and family court. A proceeding to validate the agreement shall be
571	571	540commenced before assisted reproduction related to the surrogacy agreement.
572	572	541 (b) The court shall issue an order validating a genetic surrogacy agreement if the court
573	573	542finds that:
574	574	543 (i) sections 28B, 28C, and 28D of this chapter are satisfied; and
575	575	544 (ii) all parties entered into the agreement voluntarily and understand its terms.
576	576	545 (c) An individual who terminates a genetic surrogacy agreement under section 28M shall
577	577	546file notice of the termination with the court and parties. On receipt of the notice, the court shall
578	578	547vacate any order issued under subsection (b).
579	579	548 Section 28M. Termination of genetic surrogacy agreement
580	580	549 (a) A party to a genetic surrogacy agreement may terminate the agreement as follows: An
581	581	550intended parent or individual acting as genetic surrogate who is a party to the agreement may
582	582	551terminate the agreement at any time before a gamete or embryo transfer by giving notice of
583	583	552termination in a record to all other parties. If a gamete or embryo transfer does not result in a
584	584	553pregnancy, a party may terminate the agreement at any time before a subsequent gamete or
585	585	554embryo transfer. The notice of termination shall be attested by a notary or witnessed. 28 of 32
586	586	555 (b) An intended parent or individual acting as genetic surrogate who terminates the
587	587	556agreement after the court issues an order validating the agreement under sections 28L or 28O of
588	588	557this chapter, but before the individual acting as genetic surrogate becomes pregnant by means of
589	589	558assisted reproduction, shall also file notice of the termination with such court.
590	590	559 (c) A person may not terminate a validated genetic surrogacy agreement if a gamete or
591	591	560embryo transfer has resulted in a pregnancy.
592	592	561 (d) On termination of the genetic surrogacy agreement, the parties are released from all
593	593	562obligations under the agreement except that any intended parent remains responsible for all
594	594	563expenses incurred by the individual acting as genetic surrogate through the date of termination
595	595	564which are reimbursable under the agreement. Unless the agreement provides otherwise, the
596	596	565individual acting as surrogate is not entitled to any non-expense related compensation paid for
597	597	566acting as a surrogate.
598	598	567 (e) Except in a case involving fraud, neither an individual acting as genetic surrogate nor
599	599	568the surrogate’s spouse or former spouse, if any, is liable to the intended parent or parents for a
600	600	569penalty or liquidated damages, for terminating a genetic surrogacy agreement under this section.
601	601	570 Section 28N. Parentage under validated genetic surrogacy agreement
602	602	571 (a) On birth of a child conceived by assisted reproduction under a genetic surrogacy
603	603	572agreement validated under section 28L or 28O of this chapter, each intended parent is, by
604	604	573operation of law, a parent of the resulting child.
605	605	574 (b) On birth of a child conceived by assisted reproduction under a genetic surrogacy
606	606	575agreement validated under section 28L or 28O of this chapter, the intended parent or parents 29 of 32
607	607	576shall file a notice with the court that validated the agreement that a child has been born as a result
608	608	577of assisted reproduction. Upon receiving such notice, the court shall immediately, or as soon as
609	609	578practicable, issue an order without notice and hearing:
610	610	579 (i) declaring that any intended parent or parents is a parent of a child conceived by
611	611	580assisted reproduction under the agreement and ordering that parental rights and duties vest
612	612	581exclusively in any intended parent;
613	613	582 (ii) declaring that the individual acting as genetic surrogate and the surrogate’s spouse or
614	614	583former spouse, if any, are not parents of the child;
615	615	584 (iii) designating the contents of the birth certificate in accordance with chapter 46 and
616	616	585directing the department of public health to designate any intended parent as a parent of the
617	617	586child;
618	618	587 (iv) to protect the privacy of the child and the parties, declaring that the court record is
619	619	588not open to inspection in accordance with section 28J;
620	620	589 (v) if necessary, that the child be surrendered to the intended parent or parents; and
621	621	590 (vi) for other relief the court determines necessary and proper.
622	622	591 (c) Except as otherwise provided in subsection (d) or section 28P, if, due to a clinical or
623	623	592laboratory error, a child conceived by assisted reproduction under a genetic surrogacy agreement
624	624	593is not genetically related to an intended parent or a donor who donated to the intended parent or
625	625	594parents, each intended parent, and not the individual acting as genetic surrogate and the
626	626	595surrogate’s spouse or former spouse, if any, is a parent of the child. 30 of 32
627	627	596 (d) If a child born to an individual acting as genetic surrogate is alleged not to have been
628	628	597conceived by assisted reproduction, the court may, upon finding sufficient evidence, order
629	629	598genetic testing to determine the genetic parentage of the child. If the child was not conceived by
630	630	599assisted reproduction and the second source of genetic material is the spouse of the individual
631	631	600acting as genetic surrogate, then the surrogate and the spouse shall be found to be the parents of
632	632	601the child. If the second genetic source is an individual other than the spouse of the surrogate,
633	633	602then parentage shall be determined as provided in sections 1 through 27 of this chapter.
634	634	603However, if the second genetic source is an intended parent, the court, in its sole discretion, may
635	635	604determine parentage under sections 1 through 27 of this chapter. Unless the genetic surrogacy
636	636	605agreement provides otherwise, the individual acting as genetic surrogate is not entitled to any
637	637	606non-expense related compensation paid for acting as a surrogate if the child was not conceived
638	638	607by assisted reproduction.
639	639	608 (e) If an intended parent fails to file the notice required under subsection (b) of this
640	640	609section, the individual acting as genetic surrogate may file with the court, not later than 60 days
641	641	610after the birth of a child conceived by assisted reproduction under the agreement, notice that the
642	642	611child has been born to the individual acting as genetic surrogate. On proof of a court order issued
643	643	612under sections 28L or 28O of this chapter validating the agreement, the court shall order that
644	644	613each intended parent is a parent of the child.
645	645	614 Section 28O. Effect of nonvalidated genetic surrogacy agreement
646	646	615 (a) A genetic surrogacy agreement, whether or not in a record, that is not validated under
647	647	616section 28L is enforceable only to the extent provided in this section and section 28Q. 31 of 32
648	648	617 (b) If all parties agree, a court may validate a genetic surrogacy agreement after assisted
649	649	618reproduction has occurred but before the birth of a child conceived by assisted reproduction
650	650	619under the agreement if the court finds that:
651	651	620 (i) sections 28B, 28C, or 28D of this chapter are satisfied; and
652	652	621 (ii) all parties entered into the agreement voluntarily and understand its terms.
653	653	622 (c) If a child conceived by assisted reproduction under a genetic surrogacy agreement that
654	654	623is not validated under section 28L or subsection (b) of this section is born, the individual acting
655	655	624as genetic surrogate is not automatically a parent and the court shall adjudicate parentage of the
656	656	625child based on the best interest of the child, taking into account the factors in subsection (a) of
657	657	626section 26 and the intent of the parties at the time of the execution of the agreement.
658	658	627 (d) The parties to a genetic surrogacy agreement have standing to maintain a proceeding
659	659	628to adjudicate parentage under this section.
660	660	629 Section 28P. Parentage of deceased intended parent under genetic surrogacy agreement
661	661	630 (a) Except as otherwise provided in section 28N or 28O on birth of a child conceived by
662	662	631assisted reproduction under a genetic surrogacy agreement, each intended parent is, by operation
663	663	632of law, a parent of the child, notwithstanding the death of an intended parent during the period
664	664	633between the transfer of a gamete or embryo and the birth of the child.
665	665	634 (b) Except as otherwise provided in section 28N or 28O, an intended parent is not a
666	666	635parent of a child conceived by assisted reproduction under a genetic surrogacy agreement if the
667	667	636intended parent dies before the transfer of a gamete or embryo unless: (i) the agreement provides
668	668	637otherwise; and (ii) the transfer of the gamete or embryo occurs not later than 36 months after the 32 of 32
669	669	638death of the intended parent, or birth of the child occurs not later than 45 months after the death
670	670	639of the intended parent.
671	671	640 Section 28Q. Breach of genetic surrogacy agreement
672	672	641 (a) Subject to section 28M(d), if a genetic surrogacy agreement is breached by an
673	673	642individual acting as a genetic surrogate or 1 or more intended parents, the non-breaching party is
674	674	643entitled to the remedies available at law or in equity.
675	675	644 (b) Specific performance is not a remedy available for breach by an individual acting as
676	676	645genetic surrogate of a requirement of a validated or nonvalidated genetic surrogacy agreement
677	677	646that the surrogate be impregnated, terminate or not terminate a pregnancy, or submit to medical
678	678	647procedures.
679	679	648 (c) Except as otherwise provided in subsection (b), specific performance is a remedy
680	680	649available for: (i) breach of a validated genetic surrogacy agreement by an individual acting as
681	681	650genetic surrogate of a requirement which prevents an intended parent from exercising,
682	682	651immediately upon birth of the child, the full rights of parentage; or (ii) breach by an intended
683	683	652parent which prevents the intended parent’s acceptance, immediately upon birth of the child, of
684	684	653the duties of parentage.