SENATE . . . . . . . . . . . . . . No. 2906
The Commonwealth of Massachusetts
_______________
In the One Hundred and Ninety-Third General Court
(2023-2024)
_______________
SENATE, July 29, 2024.
The committee on Senate Ways and Means to whom was referred the House Bill to
ensure legal parentage equality (House, No. 4750); reports, recommending that the same ought to
pass with an amendment striking out all after the enacting clause and inserting in place thereof
the text of Senate document numbered 2906.
For the committee,
Michael J. Rodrigues 2 of 41
SENATE . . . . . . . . . . . . . . No. 2906
The Commonwealth of Massachusetts
_______________
In the One Hundred and Ninety-Third General Court
(2023-2024)
_______________
1 SECTION 1. Section 1 of chapter 46 of the General Laws, as appearing in the 2022
2Official Edition, is hereby amended by striking out the second paragraph and inserting in place
3thereof the following paragraph:-
4 In the record of births, name, date of birth, place of birth and sex of child; legal names,
5dates of birth, residences, places of birth and surname at birth or adoption of parents. In the
6record of birth of a child born to parents not married to each other, the name of and other facts
7relating to the other parent or parents shall not be recorded except as provided in section 2 of
8chapter 209C where parentage has been acknowledged or adjudicated under the laws of the
9commonwealth or under the law of any other jurisdiction.
10 SECTION 2. Section 4B of said chapter 46 is hereby repealed.
11 SECTION 3. Section 13 of said chapter 46, as appearing in the 2022 Official Edition, is
12hereby amended by striking out, in lines 53 to 56, inclusive, the words “paternity by a court or
13administrative agency of competent jurisdiction in the commonwealth and the court orders the
14state registrar to amend the birth certificate to include the information relating to the father” and
15inserting in place thereof the following words:- parentage by a court or administrative agency of
16competent jurisdiction in the commonwealth and the court orders the state registrar to originally 3 of 41
17issue or to amend the birth certificate to include the information relating to the parentage of the
18child.
19 SECTION 4. Section 1 of chapter 209C of the General Laws, as so appearing, is hereby
20amended by inserting after the first sentence the following sentence:- A child shall have the same
21rights and protections under law to parentage without regard to the marital status, gender, gender
22identity or sexual orientation of their parents or the circumstances of the child’s birth, including
23whether the child was born as a result of assisted reproduction or surrogacy.
24 SECTION 5. Said section 1 of said chapter 209C, as so appearing, is hereby further
25amended by striking out, in lines 7 and 8, 14, 15 and 17, the word “paternity” and inserting in
26place thereof, in each instance, the following word:- parentage.
27 SECTION 6. Said section 1 of said chapter 209C, as so appearing, is hereby further
28amended by striking out, in lines 11 and 20, the words “child born out of wedlock” and inserting
29in place thereof, in each instance, the following words:- nonmarital child.
30 SECTION 7. Said section 1 of said chapter 209C, as so appearing, is hereby further
31amended by striking out, in lines 11 and 12, the words “a man and woman” and inserting in place
32thereof the following word:- persons.
33 SECTION 8. Said section 1 of said chapter 209C, as so appearing, is hereby further
34amended by striking out, in lines 20 and 25, the word “his”, and inserting in place thereof, in
35each instance, the following word:- their.
36 SECTION 9. Said chapter 209C is hereby further amended by inserting after section 1 the
37following section:- 4 of 41
38 Section 1A. For the purposes of this chapter the following terms shall have the following
39meanings, unless the context clearly requires otherwise:
40 “Acknowledged parent”, a person who has established a parent-child relationship through
41a voluntary acknowledgement of parentage.
42 “Adjudicated parent”, a person who has been adjudicated to be a parent of a child by a
43court of competent jurisdiction.
44 “Alleged genetic parent”, a person who is alleged to be or alleges to be a genetic parent
45of a child whose parentage has not been adjudicated; provided, however, that “alleged genetic
46parent” shall include a putative parent, an alleged genetic father and an alleged genetic mother;
47and provided further, that “alleged genetic parent” shall not include a presumed parent under
48section 6, an individual whose parental rights have been terminated or declared not to exist or a
49donor as described in section 27.
50 “Assisted reproduction”, a method of causing pregnancy other than sexual intercourse
51including, but not limited to, artificial insemination, intrauterine, intracervical or vaginal
52insemination, donation of gametes or embryos, in vitro fertilization and transfer of embryos and
53intracytoplasmic sperm injection.
54 “Donor”, a person who provides a gamete or embryo intended for use in assisted
55reproduction or gestation, whether or not for consideration; provided, however, that this term
56shall not include a person who consents to assisted reproduction with the intent to be a parent of
57the resulting child.
58 “Genetic surrogacy agreement”, a surrogacy agreement involving a genetic surrogate. 5 of 41
59 “Genetic surrogate”, a person who is not an intended parent and agrees to become
60pregnant through assisted reproduction using their own gamete under a genetic surrogacy
61agreement as provided in this chapter.
62 “Gestational surrogacy agreement”, a surrogacy agreement involving a gestational
63surrogate.
64 “Gestational surrogate”, a person who is not an intended parent and agrees to become
65pregnant through assisted reproduction using gametes that are not their own under a gestational
66surrogacy agreement as provided in this chapter.
67 “Intended parent”, a person, whether married or unmarried, who manifests an intent to be
68legally bound as a parent of a child resulting from assisted reproduction.
69 “Nonmarital child”, a child born to persons who are not married to each other.
70 “Parent”, a person who has established parentage of a child through: (i) birth except as
71otherwise provided in sections 28 to 28P, inclusive; (ii) presumption pursuant to section 6; (iii)
72adjudication by a court of competent jurisdiction; (iv) adoption pursuant to chapter 210; (v)
73acknowledgement pursuant to section 11; (vi) de facto parentage pursuant to section 25; (vii)
74assisted reproduction pursuant to section 27; or (viii) surrogacy pursuant to sections 28 to 28P,
75inclusive.
76 “Parentage” or “parent-child relationship”, the legal relationship between a child and a
77parent of the child. 6 of 41
78 “Presumed parent”, a person who is presumed to be a parent of a child pursuant to section
796, unless the presumption is overcome in a judicial proceeding, a valid denial of parentage is
80made under section 11 or a court adjudicates the person to be a parent.
81 “Surrogacy agreement”, an agreement between 1 or more intended parents and a person
82who is not an intended parent in which that person agrees to become pregnant through assisted
83reproduction and which provides that each intended parent is a parent of a child conceived under
84the agreement.
85 “Surrogate”, a genetic surrogate or gestational surrogate.
86 SECTION 10. Section 2 of said chapter 209C, as appearing in the 2022 Official Edition,
87is hereby amended by striking out, in line 1, the word “Paternity” and inserting in place thereof
88the following word:- Parentage.
89 SECTION 11. Said section 2 of said chapter 209C, as so appearing, is hereby further
90amended by striking out, in lines 5, 6, 12, 13, 16 and 18, the word “paternity” and inserting in
91place thereof, in each instance, the following word:- parentage.
92 SECTION 12. Section 3 of said chapter 209C, as so appearing, is hereby amended by
93striking out, in lines 3, 7, 32, 35 and 36 and 51, the word “paternity” and inserting in place
94thereof, in each instance, the following word:- parentage.
95 SECTION 13. Said section 3 of said chapter 209C, as so appearing, is hereby further
96amended by inserting after the word “parentage”, in line 4, the following words:- under this
97chapter. 7 of 41
98 SECTION 14. Said section 3 of said chapter 209C, as so appearing, is hereby further
99amended by striking out, in line 13, the word “his” and inserting in place thereof the following
100word:- their.
101 SECTION 15. Section 4 of said chapter 209C, as so appearing, is hereby amended by
102striking out, in lines 1 and 11, the word “paternity” and inserting in place thereof, in each
103instance, the following word:- parentage.
104 SECTION 16. Section 5 of said chapter 209C, as so appearing, is hereby amended by
105striking out, in lines 1 and 2, 19, 55, 60 and 62, the word “paternity” and inserting in place
106thereof, in each instance, the following word:- parentage.
107 SECTION 17. Said section 5 of said chapter 209C, as so appearing, is hereby further
108amended by striking out, in line 3, the word “mother” and inserting in place thereof the following
109words:- person who gave birth to the child.
110 SECTION 18. Said section 5 of said chapter 209C, as so appearing, is hereby further
111amended by striking out, in lines 4 and 21, the word “himself” and inserting in place thereof, in
112each instance, the following word:- themselves.
113 SECTION 19. Said section 5 of said chapter 209C, as so appearing, is hereby further
114amended by striking out, in lines 4 and 9, each time it appears, the word “father” and inserting in
115place thereof, in each instance, the following words:- other parent.
116 SECTION 20. Said section 5 of said chapter 209C, as so appearing, is hereby further
117amended by striking out, in line 7, the words “mother if the mother” and inserting in place
118thereof the following words:- person who gave birth to the child if that person. 8 of 41
119 SECTION 21. Said section 5 of said chapter 209C, as so appearing, is hereby further
120amended by striking out, in line 17, the words “mother of the child” and inserting in place
121thereof the following words:- person who gave birth to the child.
122 SECTION 22. Said section 5 of said chapter 209C, as so appearing, is hereby further
123amended by striking out, in lines 21 and 22, the words “father unless he is or was the mother’s
124husband” and inserting in place thereof the following words:- parent unless such parent is or was
125the spouse of the person who gave birth to the child.
126 SECTION 23. Said section 5 of said chapter 209C, as so appearing, is hereby further
127amended by striking out subsection (b) and inserting in place thereof the following subsection:-
128 (b) Voluntary acknowledgments of parentage may be executed by the person who gave
129birth and either an alleged genetic parent, presumed parent or intended parent as provided in this
130chapter, whether either or both is a minor, and may be registered pursuant to section 11 only if
131the signatures of both signatories are notarized. If the person who gave birth to the child was or
132is married to a spouse other than the other parent and the child’s birth occurs during the marriage
133or within 300 days of its termination by divorce, a voluntary acknowledgment of parentage
134naming the other parent may be executed by the person who gave birth and the other parent only
135if the person who gave birth and their spouse or former spouse at the time of the child’s birth or
136conception sign an affidavit denying that the spouse is the parent of the child; provided,
137however, that where the marriage has been terminated by annulment or by the death of either
138spouse, parentage of the other parent may only be established by filing a complaint to establish
139parentage as provided in this chapter. Prior to signing a voluntary acknowledgment of parentage
140at the hospital or thereafter at the office of the city or town clerk as part of the birth registration 9 of 41
141process pursuant to section 3C of chapter 46, with the department of transitional assistance, with
142the IV–D agency set forth in chapter 119A, with any agency designated by the United States
143Secretary of Health and Human Services or with any official of a court, a person who gave birth
144and the other parent shall receive notice orally, or through the use of video or audio equipment,
145and in writing of alternatives to signing the acknowledgment, including the availability of
146genetic marker testing, as well as the benefits and responsibilities with respect to child support,
147custody and visitation that may arise from signing the acknowledgment and subsequently filing
148the acknowledgment with the court or with the registrar of vital records and statistics as provided
149in this chapter.
150 SECTION 24. Section 6 of said chapter 209C, as so appearing, is hereby amended by
151striking out, in lines 1 and 2, the words “In all actions under this chapter a man is presumed to be
152the father of a child and must be joined as a party” and inserting in place thereof the following
153words:- A person is presumed to be the parent of a child and shall be joined as a party in all
154actions under this chapter.
155 SECTION 25. Said section 6 of said chapter 209C, as so appearing, is hereby further
156amended by striking out, in lines 3, 6, 11, 14, 16 and 18, the word “he” and inserting in place
157thereof, in each instance, the following words:- the person.
158 SECTION 26. Said section 6 of said chapter 209C, as so appearing, is hereby further
159amended by striking out, in line 3, 7, 12 and 19, the word “mother” and inserting in place
160thereof, in each instance, the following words:- person who gave birth to the child. 10 of 41
161 SECTION 27. Said section 6 of said chapter 209C, as so appearing, is hereby further
162amended by striking out, in line 17, the word “paternity” and inserting in place thereof the
163following word:- parentage.
164 SECTION 28. Said section 6 of said chapter 209C, as so appearing, is hereby further
165amended by striking out, in lines 21 to 23, inclusive, the words “he has acknowledged paternity
166in a parental responsibility claim as provided in section four A of chapter two hundred and ten
167and the mother” and inserting in place thereof the following words:- the person has
168acknowledged parentage in a parental responsibility claim as provided in section 4A of chapter
169210 and the person who gave birth to the child.
170 SECTION 29. Said section 6 of said chapter 209C, as so appearing, is hereby further
171amended by striking out, in lines 25 to 27, inclusive, the words “his consent and the consent of
172the child’s mother, he is named as the child’s father” and inserting in place thereof the following
173words:- the person’s consent and the consent of the person who gave birth to the child, the
174person is named as the child’s parent.
175 SECTION 30. Said section 6 of said chapter 209C, as so appearing, is hereby further
176amended by striking out subsection (b) and inserting in place thereof the following subsection:-
177 (b) Notwithstanding subsection (a), a spouse or former spouse shall not be required to be
178joined as a party if that person’s non-parentage of the child has previously been adjudicated in a
179proceeding between the spouse and the person who gave birth to the child in a court or
180administrative agency of competent jurisdiction. 11 of 41
181 SECTION 31. Section 7 of said chapter 209C, as so appearing, is hereby amended by
182striking out, in lines 3 and 4 and 8, the word “paternity” and inserting in place thereof, in each
183instance, the following word:- parentage.
184 SECTION 32. Section 8 of said chapter 209C, as so appearing, is hereby amended by
185striking out, in lines 1, 2, 5 and 15, the word “paternity” and inserting in place thereof, in each
186instance, the following word:- parentage.
187 SECTION 33. Said section 8 of said chapter 209C, as so appearing, is hereby further
188amended by striking out, in line 4, the word “his” and inserting in place thereof the following
189words:- the defendant’s.
190 SECTION 34. Said section 8 of said chapter 209C, as so appearing, is hereby further
191amended by striking out, in line 7, the words “mother or putative father submits” and inserting in
192place thereof the following words:- person who gave birth to the child or alleged genetic parent
193submits sufficient evidence of parentage, which may include evidence.
194 SECTION 35. Said section 8 of said chapter 209C, as so appearing, is hereby further
195amended by striking out, in lines 12 and 13, the words “father or mother” and inserting in place
196thereof the following word:- parent.
197 SECTION 36. Said section 8 of said chapter 209C, as so appearing, is hereby further
198amended by striking out, in line 16, the word “mother” and inserting in place thereof the
199following words:- person who gave birth to the child. 12 of 41
200 SECTION 37. Section 9 of said chapter 209C, as so appearing, is hereby amended by
201striking out, in line 21, the word “his” and inserting in place thereof the following words:- the
202defendant’s.
203 SECTION 38. Said section 9 of said chapter 209C, as so appearing, is hereby further
204amended by striking out, in line 27, the word “mother” and inserting in place thereof the
205following words: another parent.
206 SECTION 39. Subsection (a) of section 10 of said chapter 209C, as so appearing, is
207hereby amended by striking out the first paragraph and inserting in place thereof the following
208paragraph:-
209 Upon or after an adjudication or voluntary acknowledgment of parentage, the court may
210award custody of a nonmarital child to either parent or to them jointly or to another suitable
211person as hereafter further specified as may be appropriate in the best interests of the child.
212 SECTION 40. Said section 10 of said chapter 209C, as so appearing, is hereby further
213amended by striking out subsection (b) and inserting in place thereof the following subsection:-
214 (b) Prior to or in the absence of an adjudication or voluntary acknowledgment of
215parentage, the person who gave birth shall have custody of a nonmarital child. In the absence of
216an order or judgment of a probate and family court relative to custody, the person who gave birth
217shall continue to have custody of a nonmarital child after an adjudication of parentage or
218voluntary acknowledgment of parentage. 13 of 41
219 SECTION 41. Section 11 of said chapter 209C, as so appearing, is hereby amended by
220striking out, in line 2, the words “putative father” and inserting in place thereof the following
221words:- alleged genetic parent, presumed parent or intended parent.
222 SECTION 42. Said section 11 of said chapter 209C, as so appearing, is hereby further
223amended by striking out, in line 3, the words “mother of” and inserting in place thereof the
224following words:- person who gave birth to.
225 SECTION 43. Said section 11 of said chapter 209C, as so appearing, is hereby further
226amended by striking out, in lines 7, 16, 20, 22 and 37, the word “paternity” and inserting in place
227thereof, in each instance, the following word:- parentage.
228 SECTION 44. Said section 11 of said chapter 209C, as so appearing, is hereby further
229amended by striking out, in line 21, the words “by such putative father and mother”.
230 SECTION 45. Subsection (a) of said section 11 of said chapter 209C, as so appearing, is
231hereby amended by striking out the tenth sentence and inserting in place thereof the following
232sentence:- If either party rescinds the acknowledgment in a timely fashion and the basis of the
233acknowledgment was genetic parentage, the court shall order genetic marker testing and proceed
234to adjudicate parentage or nonparentage in accordance with this chapter; provided, however, that
235the rescinded acknowledgment shall constitute the proper showing required for an order to
236submit to such testing; and provided further, that the rescinded acknowledgment shall be
237admissible as evidence of the alleged genetic parent’s parentage and shall serve as sufficient
238basis for admitting the report of the results of genetic marker tests. 14 of 41
239 SECTION 46. Said section 11 of said chapter 209C, as so appearing, is hereby further
240amended by striking out, in line 56, the word “nonpaternity” and inserting in place thereof the
241following word:- nonparentage.
242 SECTION 47. Said section 11 of said chapter 209C, as so appearing, is hereby further
243amended by striking out, in line 59, the words “a mother and father” and inserting in place
244thereof the following word:- parents.
245 SECTION 48. Section 12 of said chapter 209C, as so appearing, is hereby amended by
246striking out, in line 2, the word “paternity” and inserting in place thereof the following word:-
247parentage.
248 SECTION 49. Section 13 of said chapter 209C, as so appearing, is hereby amended by
249striking out, in lines 1 and 2, the words “paternity or in which paternity” and inserting in place
250thereof the following words:- parentage or in which parentage.
251 SECTION 50. Said section 13 of said chapter 209C, as so appearing, is hereby further
252amended by striking out, in lines 7 to 9, inclusive, the words “father is adjudicated not to be the
253father of the child; provided, however, that the child, the child’s mother, the person adjudicated
254to be the father” and inserting in place thereof the following words:- parent is adjudicated not to
255be the parent of the child; provided, however, that the child, the person who gave birth to the
256child, the person adjudicated to be the parent.
257 SECTION 51. Said chapter 209C is hereby further amended by striking out section 14, as
258so appearing, and inserting in place thereof the following section:- 15 of 41
259 Section 14. Except as otherwise provided in this chapter, an action to establish parentage
260of a child may be instituted during pregnancy but shall only be filed by the person who is to give
261birth to the child or such person’s representative or by the IV-D agency as set forth in chapter
262119A on behalf of the person who is to give birth. In the case of any complaint brought prior to
263the birth of the child, no final judgment on the issue of parentage shall be made until after the
264birth of the child; provided, however, that the court may order temporary support or health care
265coverage.
266 SECTION 52. Section 16 of said chapter 209C, as so appearing, is hereby amended by
267striking out subsections (c) to (e), inclusive, and inserting in place thereof the following 3
268subsections:-
269 (c) In an action pursuant to this chapter, the person who gave birth and the alleged
270genetic parent shall be competent to testify and no privilege or disqualification created under
271chapter 233 shall prohibit testimony by a spouse or former spouse which is otherwise competent.
272If the person who gave birth is or was married, both that person and their spouse or former
273spouse may testify to parentage of the child.
274 (d) In an action to establish parentage, testimony relating to sexual access to the person
275who gave birth by an unidentified person at any time or by an identified person at any time other
276than the probable time of conception of the child is inadmissible in evidence unless offered by
277the person who gave birth.
278 (e) In an action to establish parentage based on alleged genetic parentage, the court may
279view the person who gave birth, the child and the alleged genetic parent to note any resemblance
280among the parties notwithstanding the absence of expert testimony. 16 of 41
281 SECTION 53. Said section 16 of said chapter 209C, as so appearing, is hereby further
282amended by striking out, in line 25, the word “mother” and inserting in place thereof the
283following words:- person who gave birth to the child.
284 SECTION 54. Said section 16 of said chapter 209C, as so appearing, is hereby further
285amended by striking out, in line 36, the word “paternity” and inserting in place thereof the
286following word:- parentage.
287 SECTION 55. Section 17 of said chapter 209C, as so appearing, is hereby amended by
288striking out, in lines 1 and 2, the words “paternity of a child born out of wedlock” and inserting
289in place thereof the following words:- parentage of a nonmarital child based on alleged genetic
290parentage.
291 SECTION 56. Said section 17 of said chapter 209C, as so appearing, is hereby further
292amended by striking out, in lines 4, 9, 10, 13, 26 and 28, the word “mother” and inserting in
293place thereof, in each instance, the following words:- person who gave birth to the child.
294 SECTION 57. Said section 17 of said chapter 209C, as so appearing, is hereby further
295amended by striking out, in lines 4, 9, 10, 13, 26, 28, 31, 48 and 49, the words “putative father”
296and inserting in place thereof, in each instance, the following words:- alleged genetic parent.
297 SECTION 58. Said section 17 of said chapter 209C, as so appearing, is hereby further
298amended by striking out, in lines 21 and 22, the words “putative father’s” and inserting in place
299thereof the following words:- alleged genetic parent’s. 17 of 41
300 SECTION 59. Said section 17 of said chapter 209C, as so appearing, is hereby further
301amended by striking out, in lines 22 and 30, the word “paternity” and inserting in place thereof,
302in each instance, the following words:- genetic parentage.
303 SECTION 60. Said section 17 of said chapter 209C, as so appearing, is hereby further
304amended by striking out, in lines 31 and 32 and in line 49, the first time it appears, the word
305“father” and inserting in place thereof, in each instance, the following word:- parent.
306 SECTION 61. Said section 17 of said chapter 209C, as so appearing, is hereby further
307amended by adding the following sentence:- Genetic testing shall not be used to challenge the
308parentage of an individual who is a parent under sections 25, 27 and 28 to 28P, inclusive, or to
309establish the parentage of an individual who is a donor as provided in said sections.
310 SECTION 62. Section 21 of said chapter 209C, as so appearing, is hereby amended by
311striking out, in line 4, the word “paternity” and inserting in place thereof the following word:-
312parentage.
313 SECTION 63. Section 23 of said chapter 209C, as so appearing, is hereby amended by
314striking out, in lines 1, 10, 11 and 14, the word “paternity”, and inserting in place thereof, in each
315instance, the following word:- parentage.
316 SECTION 64. Said chapter 209C is hereby further amended by adding the following 20
317sections:-
318 Section 25. (a) This section shall apply to nonmarital and marital children. 18 of 41
319 (b) A proceeding to adjudicate parentage of a child under this section may be
320commenced only by a person who: (i) is alive when the proceeding is commenced; and (ii)
321claims to be a de facto parent of the subject child under this section.
322 (c) A proceeding under this section shall be commenced during a child’s lifetime and
323before the child attains 18 years of age.
324 (d) Proceedings under this section shall be governed by the Massachusetts Rules of
325Domestic Relations Procedure.
326 (e) All parents, legal guardians and legal custodians of the subject child shall be entitled
327to notice.
328 (f) The plaintiff shall file a verified complaint alleging specific facts to support each
329element required to establish de facto parentage as set forth in subsection (i), along with any
330other pleadings, affidavits or information required by the court. The verified complaint shall be
331served on all parents, legal guardians and legal custodians of the child and any other party to the
332proceeding. Prior to an adjudication of the merits, and within 60 days of the commencement of a
333proceeding under this section, the court shall determine, based on the pleadings, whether the
334plaintiff has alleged facts sufficient to satisfy each element required to establish de facto
335parentage. Upon request made by a party entitled to notice or upon the court’s own initiative, the
336court may hold a hearing on the sufficiency of the pleadings; provided, however, that if the court
337holds any such hearing, the hearing shall be held on an expedited basis. Failure of a pleading to
338meet these standards shall constitute grounds for the court to enter a sua sponte judgment of
339dismissal without prejudice. 19 of 41
340 (g) Prior to an adjudication of the merits, and within 60 days of the commencement of a
341proceeding under this section, the court shall determine whether the plaintiff has standing to seek
342an adjudication of parentage of a child under this section. Upon request made by a party entitled
343to notice or upon the court’s own initiative, the court may hold a hearing on the issue of
344standing; provided, however, that any such hearing shall be held on an expedited basis; and
345provided further, that a hearing shall be required and there shall be a rebuttable presumption
346against standing if the court finds by a preponderance of the evidence that:
347 (i) the plaintiff is or was the defendant to: (A) an abuse prevention order issued after
348notice and hearing pursuant to chapter 209A; (B) a protection order issued pursuant to section
34934B or 34C of chapter 208; or (C) a harassment prevention order issued pursuant to chapter
350258E, involving the child, a parent of the child or a household member of the child;
351 (ii) the department of children and families has made a determination supporting an
352allegation of abuse against the plaintiff with respect to the subject child or another child in the
353same household;
354 (iii) a respondent has been an active deployed member of the military during the past 3
355years;
356 (iv) a defendant executed a military family care plan and but for the plan, the plaintiff
357would not meet at least 1 of the requirements of subsection (i), unless the defendant consents in
358writing and such written consent is filed with the complaint; or
359 (v) the plaintiff is or was the foster parent or guardian of the child and but for the
360plaintiff’s role as foster parent or guardian, the plaintiff would not meet at least 1 of the
361requirements of subsection (i). 20 of 41
362 (h) A plaintiff may file and serve a motion seeking a temporary order of contact between
363the subject child and the plaintiff contemporaneously with the complaint. After a hearing, the
364court may enter a temporary order concerning contact between the child and the plaintiff. No
365temporary order shall issue before a determination of standing; provided, however, that a hearing
366on the motion may occur on the same date as any hearing under subsections (f) or (g).
367 (i) Subject to subsection (j), the court shall adjudicate a plaintiff with standing in a
368proceeding commenced under this section to be a de facto parent of the subject child if the
369plaintiff demonstrates by clear and convincing evidence that: (i) the plaintiff resided with the
370child as a regular member of the child’s household for not less than 3 years or 40 per cent of the
371child’s life, whichever is shorter, except in extraordinary circumstances for good cause shown as
372the court may determine at the court's discretion; (ii) the plaintiff engaged in consistent
373caregiving of the child, including, but not limited to, shaping the child’s daily routine, addressing
374the child’s developmental needs and providing for the child’s education and medical care,
375individually or cooperatively with another parent; (iii) the plaintiff undertook full and permanent
376responsibilities of a parent of the child without expectation or payment of financial
377compensation; (iv) the plaintiff held out the child as the plaintiff’s child; (v) the plaintiff
378established a bonded and dependent relationship with the child that is parental in nature; (vi)
379each parent of the child consented to the bonded and dependent relationship required under
380clause (v); provided, however, that for the purposes of this section, consent may include that
381each parent, over a period of not less than 6 months: (a) held out the plaintiff as a parent of the
382child; and (b) engaged in shared decision making with the plaintiff regarding significant issues of
383the child’s education, health and welfare; provided further, that the court may determine that a
384parent has impliedly consented where that parent has not, without good cause, meaningfully 21 of 41
385engaged with the subject child through direct contact, participation in decision making or regular
386financial support for a period of 2 years; provided further, that good cause may include evidence
387that the parent attempted to meaningfully engage with the subject child by regularly requesting
388contact or participation in decision making but was prevented from doing so by another person;
389and provided further, that a notarized document affirming consent executed by a parent shall be
390evidence of that parent’s consent; and (vii) adjudicating the plaintiff to be the child’s parent is in
391the best interest of the child. In making this determination, the court shall consider evidence of
392past or present abuse by the plaintiff toward a parent or the child as a factor contrary to the best
393interest of the child; provided, however, that a finding by a preponderance of the evidence that
394the plaintiff engaged in duress, coercion or threat of harm in order to establish any of the
395elements of clauses (i) to (vi), inclusive, shall be considered evidence of abuse; provided further,
396that a finding by a preponderance of the evidence that a pattern or serious incident of abuse as
397defined in section 10 by the plaintiff against a parent or child has occurred shall create a
398rebuttable presumption that it is not in the best interest of the child that the plaintiff be
399adjudicated a parent; and provided further, that where there is credible evidence of abuse and the
400court adjudicates the plaintiff to be a parent of the subject child, the court shall make detailed
401written findings on the presence and nature of the abuse, its effect on the child and its impact on
402the plaintiff’s parenting ability.
403 (j) Subject to other limitations in this section, if in a proceeding to adjudicate the plaintiff
404as a de facto parent, there is more than 1 defendant parent and the court determines that the
405requirements of subsection (i) are satisfied, the court shall adjudicate parentage under subsection
406(c) of section 26. 22 of 41
407 (k) The adjudication of a plaintiff as a de facto parent under this section shall not affect
408the legal parentage of any other parent to the child and shall not be considered evidence of
409parental unfitness of a defendant parent to the child.
410 (l) Custody, parenting time, visitation and child support shall be determined in
411accordance with applicable laws, rules, regulations, orders and guidelines.
412 (m) Nothing in this section shall be interpreted to preclude an action in equity pursuant to
413section 6 of chapter 215 to establish a third-party right to visitation.
414 Section 26. (a) In a proceeding to adjudicate competing claims of, or challenges to,
415parentage of a child by 2 or more persons, the court shall adjudicate parentage in the best interest
416of the child, based on: (i) the age of the child; (ii) the length of time during which each person
417assumed the role of parent of the child; (iii) the nature of the relationship between the child and
418each person; (iv) the harm to the child if the relationship between the child and each person is not
419recognized; (v) the basis for each person’s claim to parentage of the child; and (vi) other
420equitable factors arising from the disruption of the relationship between the child and each
421person or the likelihood of other harm to the child.
422 (b) If a person challenges parentage based on the results of genetic testing, in addition to
423the factors listed in subsection (a), the court shall consider: (i) the facts surrounding the
424discovery that the person might not be a genetic parent of the child; and (ii) the length of time
425between the time that the person was placed on notice that the person might not be a genetic
426parent and the commencement of the proceeding. 23 of 41
427 (c) The court may adjudicate a child to have more than 2 parents if the court finds that it
428is in the best interest of the child. A finding of best interest of the child under this section does
429not require a finding of unfitness of any parent or person seeking an adjudication of parentage.
430 (d) Custody, parenting time, visitation and child support shall be determined in
431accordance with applicable laws, rules, regulations, orders and guidelines.
432 Section 27. (a) This section shall apply to nonmarital and marital children. This section
433shall not apply to the parentage of a child conceived by sexual intercourse or assisted
434reproduction under a surrogacy agreement under sections 28 to 28P, inclusive.
435 (b) Venue for a proceeding to adjudicate parentage under this section shall be in the
436county in which: (i) the child resides or was born or will be born; (ii) any parent or intended
437parent of the child resides; or (iii) a proceeding has been commenced for administration of the
438estate of a person who is or may be a parent under this chapter.
439 (c) A donor shall not be deemed a parent of a child conceived through assisted
440reproduction based solely on the donor’s genetic connection to such child. A donor shall not be
441entitled to establish the donor's parentage by signing an acknowledgment pursuant to this
442chapter. A donor shall not be entitled to notice in a proceeding under this chapter.
443 (d) A person who consents to assisted reproduction with the intent to be a parent of the
444child conceived by said assisted reproduction shall be a parent of the child. Consent to assisted
445reproduction may be established by: (i) a record signed by the person giving birth to a child
446conceived by assisted reproduction and by an intended parent before, on or after the birth of the
447child; or (ii) a finding by the court, by a preponderance of the evidence, that: (a) prior to
448conception or birth of the child, the parties agreed that they would be parents of the child; or (b) 24 of 41
449the person who seeks to be a parent of the child, together with the person giving birth,
450voluntarily participated in and consented to the assisted reproduction that resulted in the
451conception of the child.
452 (e)(1) Except as provided in paragraph (2), a person who, at the time of a child’s birth, is
453the spouse of the person who gave birth to the child by assisted reproduction may not challenge
454their own parentage of the child unless, not later than 2 years after the birth of the child, they
455commence a proceeding to adjudicate their own parentage of the child and the court finds that
456they did not consent to the assisted reproduction before, on, or after the birth of the child or
457withdrew consent pursuant to subsection (g).
458 (2) A proceeding to adjudicate a spouse’s parentage of a child born by assisted
459reproduction may be commenced at any time if the court determines that the spouse who is
460challenging the parentage: (i) neither provided a gamete for, nor consented to, the assisted
461reproduction; (ii) has not cohabitated with the person who gave birth to the child since the
462probable time of assisted reproduction; or (iii) t never openly held out the child as their child.
463This subsection shall apply to a spouse’s challenge of parentage even if the spouse’s marriage is
464declared invalid after assisted reproduction occurs.
465 (f) A person who consents to assisted reproduction pursuant to subsection (d) may
466withdraw consent any time before a transfer or implantation of gametes or embryos that results
467in a pregnancy by giving notice in writing of their withdrawal of consent to the person who
468agreed to give birth to a child conceived by assisted reproduction and to any clinic or healthcare
469provider facilitating the assisted reproduction; provided, however, that failure to give notice to a
470clinic or healthcare provider shall not affect a determination of parentage pursuant to this section. 25 of 41
471A person who withdraws consent in compliance with this subsection shall not be a parent of the
472child under this section.
473 (g)(1) If a person who intends to be a parent of a child conceived by assisted reproduction
474dies during the period between the transfer or implantation of a gamete or embryo and the birth
475of the child, said person’s death shall not preclude the establishment of their parentage of the
476child if said person would be a parent of the child under this section but for the death.
477 (2) If a person who consented in writing to assisted reproduction by a person who agreed
478to give birth to a child dies before a transfer or implantation of gametes or embryos, the deceased
479person shall be a parent of a child conceived by the assisted reproduction if: (i) (a) the person
480consented in writing that if assisted reproduction were to occur after their death, they would be a
481parent of the child; or (b) the person’s intent to be a parent of a child conceived by assisted
482reproduction after their death is established by a preponderance of the evidence; and (ii) (a) the
483embryo is in utero not later than 36 months after the person’s death; or (b) the child is born not
484later than 45 months after the person’s death.
485 (h) If, due to a clinical or laboratory error, a child conceived by assisted reproduction is
486not genetically related to any intended parent or any donor who donated to the intended parent or
487parents, the intended parent or parents shall be the parent or parents of the child unless otherwise
488determined by the court.
489 (i) Genetic testing, including genetic marker testing pursuant to section 11, shall not be
490used to: (i) challenge the parentage of a person who is a parent pursuant to this section; or (ii)
491establish the parentage of a person who is a donor. 26 of 41
492 (j) (1)A person giving birth or a person who is or claims to be a parent pursuant to this
493section may commence a proceeding prior to or after the birth of a child by assisted reproduction
494to obtain a judgment: (i) declaring that the intended parent or parents are the parent or parents of
495the resulting child immediately upon the birth of the child and ordering that parental rights and
496responsibilities vest exclusively in the intended parent or parents immediately upon birth of the
497child; and (ii) designating the contents of the birth certificate and directing the department of
498public health to designate the intended parent or parents as the parent or parents of the resulting
499child.
500 (2) A judgment issued by a court pursuant to this subsection before the birth of the
501resulting child by assisted reproduction shall not take effect until the birth of the resulting child.
502Nothing in this subsection shall be construed to limit said court’s authority to issue orders under
503any other provision of the General Laws.
504 (3) The commonwealth, the department of public health and the hospital where the child
505is or is expected to be born shall not be necessary parties to a proceeding under this section.
506 (4) The burden of proof in proceedings pursuant to this section shall be by a
507preponderance of the evidence.
508 (k) At the request of a party to a proceeding pursuant to this section, the court shall close
509the proceeding to the general public.
510 (l) The court shall issue a final judgment adjudicating whether a person alleged or
511claiming to be a parent is the parent of a child in a proceeding pursuant to this section. At the
512request of a party, and subject to other applicable laws, the court in a proceeding pursuant to this
513section may order the legal name of the child to be changed. If the final judgment of the court is 27 of 41
514at variance with the child’s birth certificate, the court shall order the department of public health
515to issue an amended birth certificate that conforms with the final judgment.
516 (m) Custody, parenting time, visitation and child support for a nonmarital child shall be
517determined in accordance with applicable laws, rules, regulations, orders and guidelines.
518 Section 28. (a) Sections 28 to 28P, inclusive, shall apply to nonmarital and marital
519children. This section shall not apply to the birth of a child conceived by sexual intercourse or
520assisted reproduction under section 27.
521 (b) Venue for proceedings under sections 28 to 28P, inclusive, shall be in the county in
522which: (i) the child resides, is born or is expected to be born; (ii) a parent or intended parent of
523the child resides; (iii) a person acting as a surrogate resides; or (iv) a proceeding has been
524commenced for administration of the estate of a person who is or may be a parent under this
525chapter.
526 Section 28A. (a) To execute a surrogacy agreement to act as a surrogate, a person shall:
527(i) be not less than 21 years of age; (ii) have previously given birth to at least 1 child; (iii)
528complete a medical evaluation by a licensed physician related to surrogacy; and (iv) complete a
529mental health consultation by a licensed mental health professional that is independent of the
530health care providers or facility undertaking any assisted reproduction procedure contemplated
531by the surrogacy agreement.
532 (b) To execute a surrogacy agreement as an intended parent, whether or not genetically
533related to the child, a person shall: (i) be not less than 21 years of age; and (ii) complete a mental
534health consultation by a licensed mental health professional that is independent of the health care 28 of 41
535providers or facility undertaking any assisted reproduction procedure contemplated by the
536surrogacy agreement.
537 Section 28B. A surrogacy agreement shall be enforceable if:
538 (i) the prospective surrogate, their spouse, if any, and each intended parent are parties to
539the agreement;
540 (ii) the prospective surrogate and each intended parent meet the eligibility requirements
541of section 28A;
542 (iii) at least 1 party is a resident of the commonwealth or, if no party is a resident of the
543commonwealth, at least 1 medical evaluation, medical procedure or mental health consultation
544under the agreement occurs in the commonwealth;
545 (iv) the agreement is in writing and signed by all parties;
546 (v) the agreement is executed prior to a medical procedure attempting to cause a
547pregnancy in the prospective surrogate, other than the medical evaluation and mental health
548consultation required by section 28A, and, in every instance, before transfer of embryos or
549gametes;
550 (vi) the signature of each party to the agreement is attested by a notary;
551 (vii) each party to the agreement signs a written acknowledgment of having received a
552copy of the agreement;
553 (viii) the prospective surrogate, the surrogate’s spouse, if any, and each intended parent
554have independent legal representation regarding the terms and potential legal consequences of 29 of 41
555the surrogacy agreement, paid for by the intended parent or parents, and each legal representative
556shall be identified in the surrogacy agreement; provided, however, that a single attorney for the
557prospective surrogate and their spouse and a single attorney for the intended parents shall be
558sufficient to meet this requirement; and
559 (ix) records related to the medical evaluation and mental health consultations conducted
560pursuant to section 28A shall be made available to the surrogate, the surrogate’s spouse, if any,
561and each intended parent; provided, however, that all such records shall remain otherwise
562confidential absent a court order.
563 Section 28C. (a) For a surrogacy agreement to be enforceable, the agreement shall
564provide that:
565 (i) the surrogate: (A) shall undergo assisted reproduction and attempt to carry and give
566birth to any resulting child; (B) except as otherwise provided in sections 28I, 28M and 28N, shall
567have no claim to parentage of any resulting child; and (C) acknowledges the exclusive parentage
568of the intended parent or parents of all resulting children;
569 (ii) if the surrogate is married, their spouse: (A) acknowledges and agrees to abide by all
570obligations imposed on the surrogate by the terms of the surrogacy agreement; (B) except as
571otherwise provided in sections 28I, 28M and 28N, shall have no claim to parentage of any
572resulting child; and (C) acknowledges the exclusive parentage of the intended parent or parents
573of all resulting children; and
574 (iii) the intended parent or, if there are more than 1 intended parents, each parent jointly
575and severally: (A) except as otherwise provided in sections 28G, 28J, 28M and 28N, agree to be
576the exclusive parent or parents and accept parental rights and responsibilities of all resulting 30 of 41
577children regardless of the number of children born or the gender or condition of each child; and
578(B) except as otherwise provided in sections 28G, 28J, 28M and 28N, agree to assume
579responsibility for the financial support of all resulting children immediately upon the birth of the
580children regardless of the number of children born or the gender or condition of each child.
581 (b) The intended parent or parents shall pay for all surrogacy-related expenses of the
582surrogate, including expenses for healthcare provided for assisted reproduction, prenatal care,
583labor and delivery and the medical expenses of all resulting children, that are not covered by
584insurance; provided, however, that this subsection shall not be construed to supplant any health
585insurance coverage that is otherwise available to the surrogate or an intended parent for the
586coverage of healthcare costs; provided further, that this subsection shall not change the health
587insurance coverage of the surrogate or the responsibility of the insurance company to pay
588benefits under a policy that covers a surrogate.
589 (c) The surrogacy agreement shall not infringe on the rights of the surrogate to make all
590health and welfare decisions regarding the surrogate, the surrogate’s body and the surrogate’s
591pregnancy throughout the duration of the surrogacy agreement, including during attempts to
592become pregnant, pregnancy, labor and delivery and post-partum. The surrogacy agreement shall
593not infringe upon the right of the surrogate to autonomy in medical decision making, including,
594but not limited to, whether to consent to a caesarean section and whether to undergo multiple
595embryo transfers. Except as otherwise provided by law, any written or oral agreement purporting
596to waive or limit these rights shall be void as against public policy.
597 (d) The surrogacy agreement shall include information about the right of each party to
598terminate the surrogacy agreement. 31 of 41
599 (e) Rights created under a surrogacy agreement shall not be assignable and there shall be
600no third-party beneficiary to a surrogacy agreement other than the resulting child of the
601surrogacy.
602 (f) A surrogacy agreement may provide for: (i) payment of consideration and reasonable
603expenses; and (ii) reimbursement of specific expenses if the agreement is terminated pursuant to
604this chapter.
605 Section 28D. Unless a surrogacy agreement expressly provides otherwise: (i) the
606marriage of the surrogate or of an intended parent after the surrogacy agreement has been signed
607by all parties shall not affect the validity of the surrogacy agreement; (ii) the surrogate or
608intended parent’s spouse’s consent to the surrogacy agreement shall not be required; (iii) the
609surrogate or intended parent’s spouse shall not be a presumed parent of a child conceived by
610assisted reproduction under the surrogacy agreement; and (iv) the divorce or annulment of the
611surrogate or of an intended parent after the surrogacy agreement has been signed by all parties
612shall not affect the validity of the surrogacy agreement.
613 Section 28E. After the execution of a surrogacy agreement and before the date of
614termination of the surrogacy agreement pursuant its terms or 180 days after the birth of a child
615conceived by assisted reproduction under the surrogacy agreement, whichever occurs earlier, the
616court conducting a proceeding under sections 28 to 28P, inclusive, shall have exclusive,
617continuing jurisdiction over all matters arising out of the surrogacy agreement; provided,
618however, that the court shall not have jurisdiction over a child custody or child support
619proceeding if jurisdiction is not otherwise authorized. 32 of 41
620 Section 28F. (a) A party to a gestational surrogacy agreement may terminate the
621agreement at any time before an embryo transfer or implantation by giving written notice of
622termination to all other parties. If an embryo transfer or implantation does not result in
623pregnancy, a party may terminate the agreement at any time before a subsequent embryo transfer
624or implantation.
625 (b) Unless a gestational surrogacy agreement provides otherwise, upon termination of the
626agreement under subsection (a), the parties shall be released from the agreement; provided,
627however, that the intended parent or parents remain responsible for expenses that are
628reimbursable under the agreement and incurred by the gestational surrogate through the date of
629the termination of the agreement.
630 (c) Except in a case involving fraud, neither a gestational surrogate nor the surrogate’s
631spouse or former spouse, if any, shall be liable to the intended parent or parents for punitive or
632liquidated damages for terminating a gestational surrogacy agreement in compliance with this
633section.
634 Section 28G. (a) Except as otherwise provided in subsection (c), or sections 28H or 28J,
635upon the birth of a child conceived by assisted reproduction under a gestational surrogacy
636agreement, each intended parent shall be, by operation of law, a parent of the child. Parental
637rights shall vest exclusively in the intended parent or parents immediately upon birth of the
638resulting child.
639 (b) Except as otherwise provided in subsection (c) or section 28J, a person acting as
640gestational surrogate or such person’s spouse or former spouse, if any, shall not be, by operation
641of law, a parent of the child. 33 of 41
642 (c) If a child is alleged to be a genetic child of the gestational surrogate, the court shall,
643upon finding sufficient evidence, order genetic testing of the child. If the child is a genetic child
644of the gestational surrogate, parentage shall be determined in accordance with sections 1 to 27,
645inclusive.
646 (d) Except as otherwise provided in subsection (c) or subsection (b) of section 28H or
647section 28I, if, due to a clinical or laboratory error, a child conceived by assisted reproduction
648under a gestational surrogacy agreement is not genetically related to an intended parent or a
649donor who donated to the intended parent or parents, each intended parent shall be a parent of the
650child and the person acting as gestational surrogate and their spouse or former spouse, if any,
651shall not be a parent of the child.
652 (e) This section shall apply to an intended parent, including an intended parent who dies
653during the period between the transfer or implantation of a gamete or embryo and the birth of the
654child.
655 Section 28H. Except as otherwise provided in section 28J, an intended parent shall not be
656a parent of a child conceived by assisted reproduction under a gestational surrogacy agreement if
657the intended parent dies before the transfer or implantation of a gamete or embryo unless: (i) the
658surrogacy agreement provides otherwise; and (ii) the transfer of a gamete or embryo occurs not
659later than 36 months after the death of the intended parent or birth of the child occurs not later
660than 45 months after the death of the intended parent.
661 Section 28I. (a) Except as otherwise provided in subsection (c) of section 28G or section
66228J, before, on or after the birth of a child conceived by assisted reproduction under a gestational 34 of 41
663surrogacy agreement, any party to the agreement may commence a proceeding for a judgment of
664parentage:
665 (i) declaring that each intended parent is a parent of the child and ordering that parental
666rights and duties vest immediately upon the birth of the child exclusively in each intended
667parent;
668 (ii) declaring that the gestational surrogate and the surrogate’s spouse or former spouse, if
669any, are not the parents of the child;
670 (iii) designating the content of the birth record in accordance with chapter 46 and
671directing the department of public health to designate each intended parent as a parent of the
672child;
673 (iv) to protect the privacy of the child and the parties, declaring that the court record and
674related pleadings be impounded in accordance with this section;
675 (v) if necessary, ordering that the child be surrendered to the intended parent or parents;
676 (vi) if necessary, ordering that the hospital where the child will be or has been born, treat
677the intended parent or parents as the sole legal parent or parents for the purpose of naming and
678medical decisions; and
679 (vii) for other relief the court determines necessary and proper.
680 (b) The court may issue an order or judgment under subsection (a) before or after the
681birth of the child, as requested by the parties. 35 of 41
682 (c) The commonwealth, the department of public health, the town or city clerk and the
683hospital where the child is born or is intended to be born shall not be necessary parties to a
684proceeding under subsection (a). Any party to the surrogacy agreement not joining in the action
685shall be provided with notice of the proceeding.
686 (d) A complaint filed pursuant to this section shall include: (i) a copy of the executed
687surrogacy agreement; (ii) a sworn affidavit of the assisted reproductive physician confirming that
688the child was conceived pursuant to assisted reproduction; and (iii) certifications from the
689attorneys representing the intended parent or parents and the gestational surrogate that the
690requirements of sections 28A, 28B and 28C have been met. A complaint supported by such
691affidavit and certifications shall be sufficient to establish parentage and a hearing shall not be
692required unless the court requires additional information which cannot reasonably be ascertained
693without a hearing.
694 (e) Upon a finding by a preponderance of the evidence that the complaint satisfies
695subsection (d), a court shall expeditiously, but not later than 60 days from the docketing of the
696complaint, issue a judgment of parentage. Parentage judgments issued under this section shall
697conclusively establish or affirm, where applicable, the parent-child relationship for all purposes.
698Custody, parenting time, visitation and child support for a nonmarital child shall be determined
699in accordance with applicable laws, rules, regulations, orders and guidelines.
700 (f) In the event the certification required by subsection (d) cannot be made because of a
701technical or nonmaterial deviation from the requirements of sections 28A, 28B and 28C, the
702court with competent jurisdiction may enforce the agreement and issue a judgment of parentage 36 of 41
703if the court determines the agreement is in substantial compliance with the requirements of said
704sections.
705 (g) At the request of a party, the court of competent jurisdiction shall close a proceeding
706under this section to the general public. All complaints, pleadings, papers or documents filed
707pursuant to this section, and docket entries, shall not be available for inspection unless the court
708where such records are kept, for good cause shown, otherwise orders or unless requested by the
709child or the parties. All such complaints, pleadings, papers or documents shall be segregated.
710 Section 28J. (a) A gestational surrogacy agreement that substantially complies with
711sections 28A, 28B and 28C shall be enforceable.
712 (b) If a child was conceived by assisted reproduction under a gestational surrogacy
713agreement that does not substantially comply with sections 28A, 28B and 28C, the court shall
714determine the rights and duties of the parties to the agreement consistent with the intent of the
715parties at the time of execution of the agreement. Each party to the agreement and any person
716who at the time of the execution of the agreement was a spouse of a party to the agreement shall
717have standing to commence a proceeding to adjudicate an issue related to the enforcement of the
718agreement.
719 (c) Except as expressly provided in a gestational surrogacy agreement or subsection (d)
720or (e), if the agreement is breached by the gestational surrogate or 1 or more intended parents,
721the non-breaching party shall be entitled to the remedies available at law or in equity.
722 (d) Specific performance shall not be an available remedy for breach by a gestational
723surrogate of a provision in an agreement that the gestational surrogate become pregnant,
724terminate or not terminate a pregnancy or submit to medical procedures. 37 of 41
725 (e) Except as otherwise provided in subsection (c), if an intended parent is determined to
726be a parent of the child pursuant to this chapter, specific performance shall be a remedy available
727for: (i) breach of the agreement by a gestational surrogate which prevents the intended parent
728from exercising, immediately on birth of the child, the full rights of parentage; or (ii) breach by
729the intended parent which prevents the intended parent’s acceptance, immediately on birth of the
730child conceived by assisted reproduction under the agreement, of the duties of parentage.
731 Section 28K. (a) Except as otherwise provided in section 28N, a genetic surrogacy
732agreement shall be validated by a probate and family court. A proceeding to validate the
733agreement shall be commenced before assisted reproduction related to the surrogacy agreement.
734A complaint filed pursuant to this section shall include: (i) a copy of the executed surrogacy
735agreement; and (ii) certifications from the legal representatives of the intended parent or parents
736and the genetic surrogate that the requirements of sections 28A, 28B and 28C have been met.
737 (b) The court shall issue an order validating a genetic surrogacy agreement, within 60
738days of the commencement of such a proceeding, if the court finds by a preponderance of the
739evidence that: (i) sections 28A, 28B and 28C are satisfied; and (ii) all parties entered into the
740agreement voluntarily and understand its terms.
741 (c) A person who terminates a genetic surrogacy agreement under section 28L shall file
742notice of the termination with the court and parties. On receipt of the notice, the court shall
743vacate any order issued under subsection (b).
744 Section 28L. (a) An intended parent or genetic surrogate who is a party to the surrogacy
745agreement may terminate the agreement at any time before a gamete or embryo transfer or
746implantation by giving notice of termination in writing to all other parties. If a gamete or embryo 38 of 41
747transfer or implantation does not result in a pregnancy, a party may terminate the agreement at
748any time before a subsequent gamete or embryo transfer or implantation. The party’s signature
749on a notice of termination shall be attested by a notary.
750 (b) An intended parent or genetic surrogate who terminates the agreement after the court
751issues an order validating the agreement under sections 28K or 28N, but before the genetic
752surrogate becomes pregnant by means of assisted reproduction, shall file notice of the
753termination with the court.
754 (c) A person shall not terminate a validated genetic surrogacy agreement if a gamete or
755embryo transfer or implantation has resulted in a pregnancy.
756 (d) Upon the proper termination or completion of a genetic surrogacy agreement, the
757parties shall be released from all obligations under the agreement except that any intended parent
758or parents shall remain responsible for all expenses incurred by the genetic surrogate through the
759date of the completion which are reimbursable under the agreement. Unless the agreement
760provides otherwise, the genetic surrogate is not entitled to any non-expense related compensation
761paid for acting as a surrogate.
762 (e) Except in a case involving fraud, neither a genetic surrogate nor their spouse or
763former spouse, if any, shall be liable to the intended parent or parents for punitive or liquidated
764damages, for terminating a genetic surrogacy agreement in compliance with this section.
765 Section 28M. (a) Upon the birth of a child conceived by assisted reproduction under a
766genetic surrogacy agreement validated pursuant to section 28K or 28N, each intended parent
767shall be a parent of the resulting child. 39 of 41
768 (b) Upon the birth of a child conceived by assisted reproduction under a genetic
769surrogacy agreement validated under section 28K or 28N, the intended parent or parents shall
770file a notice with the court that validated said agreement that a child has been born as a result of
771assisted reproduction under that agreement. Upon receiving such notice, the court shall
772immediately, or as soon as practicable, issue an order without notice and hearing:
773 (i) declaring that any intended parent or parents is a parent of a child conceived by
774assisted reproduction under the agreement and ordering that parental rights and duties vest
775exclusively in any intended parent;
776 (ii) declaring that the genetic surrogate and their spouse or former spouse, if any, are not
777parents of the child;
778 (iii) designating the contents of the birth certificate in accordance with chapter 46 and
779directing the department of public health to designate any intended parent as a parent of the
780child;
781 (iv) to protect the privacy of the child and the parties, declaring that the court record and
782related pleadings be impounded in accordance with section 28I;
783 (v) if necessary, ordering that the child be surrendered to the intended parent or parents;
784and
785 (vi) for other relief the court determines necessary and proper.
786 (c) Except as otherwise provided in subsection (d) or section 28O, if, due to a clinical or
787laboratory error, a child conceived by assisted reproduction under a genetic surrogacy agreement
788is not genetically related to an intended parent or a donor who donated to the intended parent or 40 of 41
789parents, each intended parent and not the genetic surrogate and their spouse or former spouse, if
790any, shall be a parent of the child.
791 (d) If a child born to a genetic surrogate is alleged not to have been conceived by assisted
792reproduction, the court may, upon finding sufficient evidence, order genetic testing to determine
793the genetic parentage of the child. If the child was not conceived by assisted reproduction and the
794second source of genetic material is the spouse of the genetic surrogate, then the surrogate and
795the spouse shall be found to be the parents of the child. If the second genetic source is a person
796other than the spouse of the surrogate, then parentage shall be determined as provided in sections
7971 to 27, inclusive; provided, however, that if the second genetic source is an intended parent, the
798court, in its sole discretion, shall determine parentage under sections 1 to 27, inclusive. Unless
799the genetic surrogacy agreement provides otherwise, the genetic surrogate shall not be entitled to
800any non-expense related compensation paid for acting as a surrogate if the child was not
801conceived by assisted reproduction.
802 (e) If an intended parent fails to file the notice required under subsection (b), the person
803acting as genetic surrogate may file with the court, not later than 60 days after the birth of a child
804conceived by assisted reproduction under the genetic surrogacy agreement, notice that the child
805has been born to the genetic surrogate. On proof of a court order issued under sections 28K or
80628N validating the agreement, the court shall order that each intended parent is a parent of the
807child.
808 Section 28N. (a) A genetic surrogacy agreement, whether or not in writing, that is not
809validated under section 28K shall be enforceable only to the extent provided in this section and
810section 28P. 41 of 41
811 (b) If all parties agree, a court may validate a genetic surrogacy agreement after assisted
812reproduction has occurred and before the birth of a child conceived by assisted reproduction
813under the agreement if the court finds by a preponderance of the evidence that: (i) sections 28A,
81428B or 28C are satisfied; and (ii) all parties entered into the agreement voluntarily and
815understand its terms.
816 (c) If a child conceived by assisted reproduction under a genetic surrogacy agreement that
817is not validated under section 28K or subsection (b) is born, the genetic surrogate shall not
818automatically be a parent and the court shall adjudicate parentage of the child based on the best
819interest of the child, taking into account the factors in subsection (a) of section 26 and the intent
820of the parties at the time of the execution of the agreement.
821 (d) The parties to a genetic surrogacy agreement shall have standing to commence a
822proceeding to adjudicate parentage under this section.
823 Section 28O. (a) Except as otherwise provided in sections 28M or 28N, upon the birth of
824a child conceived by assisted reproduction under a genetic surrogacy agreement, each intended
825parent shall be, by operation of law, a parent of the child, notwithstanding the death of an
826intended parent during the period between the transfer of a gamete or embryo and the birth of the
827child.
828 (b) Except as otherwise provided in sections 28M or 28N, an intended parent shall not be
829a parent of a child conceived by assisted reproduction under a genetic surrogacy agreement if the
830intended parent dies before the transfer of a gamete or embryo unless: (i) the agreement provides
831otherwise; and (ii) the transfer of the gamete or embryo occurs not later than 36 months after the 42 of 41
832death of the intended parent, or birth of the child occurs not later than 45 months after the death
833of the intended parent.
834 Section 28P. (a) Subject to subsection (d) of section 28L, if a genetic surrogacy
835agreement is breached by a genetic surrogate or 1 or more intended parents, the non-breaching
836party is entitled to the remedies available at law or in equity.
837 (b) Specific performance shall not be an available remedy for breach by a genetic
838surrogate of a requirement of a validated or nonvalidated genetic surrogacy agreement that the
839genetic surrogate become pregnant, terminate or not terminate a pregnancy or submit to medical
840procedures.
841 (c) Except as otherwise provided in subsection (b), specific performance shall be a
842remedy available for: (i) breach of a validated genetic surrogacy agreement by a genetic
843surrogate of a requirement which prevents an intended parent from exercising, immediately upon
844birth of the child, the full rights of parentage; or (ii) breach by an intended parent which prevents
845the intended parent’s acceptance, immediately upon birth of the child, of the duties of parentage.
846 SECTION 65. The department of the trial court, in accordance with section 24 of chapter
847209C of the General Laws, shall update existing forms and promulgate new forms as necessary
848for use under said chapter 209C, which shall be in such form and language to permit a person to
849prepare and file such forms pro se.
850 SECTION 66. This act shall take effect on January 1, 2025.