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