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SENATE . . . . . . . . . . . . . . No. 2912
July 30, 2024 -- Text of the Senate amendment to the House Bill to ensure legal parentage
equality (House, No. 4750) (being the text of Senate, No. 2906, printed as amended)
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 the parent or
6parents. In the record of birth of a child born to parents not married to each other, the name of
7and other facts relating to the other parent or parents shall not be recorded except as provided in
8section 2 of chapter 209C where parentage has been acknowledged or adjudicated under the laws
9of the commonwealth 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 Section 4B of said chapter 46 is hereby repealed.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 2 of 42
16competent jurisdiction in the commonwealth and the court orders the state registrar to originally
17issue or to amend the birth certificate to include the information relating to the parentage of the
18child.
19 SECTION 4. Chapter 209C of the General Laws is hereby amended by striking out the
20title, as so appearing, and inserting in place thereof the following title:- NONMARITAL
21CHILDREN AND PARENTAGE OF CHILDREN.
22 SECTION 5. Section 1 of chapter 209C of the General Laws, as so appearing, is hereby
23amended by inserting after the first sentence the following sentence:- A child shall have the same
24rights and protections under law to parentage without regard to the marital status, gender, gender
25identity or sexual orientation of their parents or the circumstances of the child’s birth, including
26whether the child was born as a result of assisted reproduction or surrogacy.
27 SECTION 6. Said section 1 of said chapter 209C, as so appearing, is hereby further
28amended by striking out, in lines 7 and 8, 14, 15 and 17, the word “paternity” and inserting in
29place thereof, in each instance, the following word:- parentage.
30 SECTION 7. Said section 1 of said chapter 209C, as so appearing, is hereby further
31amended by striking out, in lines 11 and 20, the words “child born out of wedlock” and inserting
32in place thereof, in each instance, the following words:- nonmarital child.
33 SECTION 8. Said section 1 of said chapter 209C, as so appearing, is hereby further
34amended by striking out, in lines 11 and 12, the words “a man and woman” and inserting in place
35thereof the following word:- persons. 3 of 42
36 SECTION 9. Said section 1 of said chapter 209C, as so appearing, is hereby further
37amended by striking out, in lines 20 and 25, the word “his”, and inserting in place thereof, in
38each instance, the following word:- their.
39 SECTION 10. Said chapter 209C is hereby further amended by inserting after section 1
40the following section:-
41 Section 1A. For the purposes of this chapter the following terms shall have the following
42meanings, unless the context clearly requires otherwise:
43 “Acknowledged parent”, a person who has established a parent-child relationship through
44a voluntary acknowledgement of parentage.
45 “Adjudicated parent”, a person who has been adjudicated to be a parent of a child by a
46court of competent jurisdiction.
47 “Alleged genetic parent”, a person who is alleged to be or alleges to be a genetic parent
48of a child whose parentage has not been adjudicated; provided, however, that “alleged genetic
49parent” shall include a putative parent, an alleged genetic father and an alleged genetic mother;
50and provided further, that “alleged genetic parent” shall not include a presumed parent under
51section 6, an individual whose parental rights have been terminated or declared not to exist or a
52donor as described in section 27.
53 “Assisted reproduction”, a method of causing pregnancy other than sexual intercourse
54including, but not limited to, artificial insemination, intrauterine, intracervical or vaginal
55insemination, donation of gametes or embryos, in vitro fertilization and transfer of embryos and
56intracytoplasmic sperm injection. 4 of 42
57 “Donor”, a person who provides a gamete or embryo intended for use in assisted
58reproduction or gestation, whether or not for consideration; provided, however, that this term
59shall not include a person who consents to assisted reproduction with the intent to be a parent of
60the resulting child.
61 “Genetic surrogacy agreement”, a surrogacy agreement involving a genetic surrogate.
62 “Genetic surrogate”, a person who is not an intended parent and agrees to become
63pregnant through assisted reproduction using their own gamete under a genetic surrogacy
64agreement as provided in this chapter.
65 “Gestational surrogacy agreement”, a surrogacy agreement involving a gestational
66surrogate.
67 “Gestational surrogate”, a person who is not an intended parent and agrees to become
68pregnant through assisted reproduction using gametes that are not their own under a gestational
69surrogacy agreement as provided in this chapter.
70 “Intended parent”, a person, whether married or unmarried, who manifests an intent to be
71legally bound as a parent of a child resulting from assisted reproduction.
72 “Nonmarital child”, a child born to persons who are not married to each other.
73 “Parent”, a person who has established parentage of a child through: (i) birth except as
74otherwise provided in sections 28 to 28P, inclusive; (ii) presumption pursuant to section 6; (iii)
75adjudication by a court of competent jurisdiction; (iv) adoption pursuant to chapter 210; (v)
76acknowledgement pursuant to section 11; (vi) de facto parentage pursuant to section 25; (vii) 5 of 42
77assisted reproduction pursuant to section 27; or (viii) surrogacy pursuant to sections 28 to 28P,
78inclusive.
79 “Parentage” or “parent-child relationship”, the legal relationship between a child and a
80parent of the child.
81 “Presumed parent”, a person who is presumed to be a parent of a child pursuant to section
826, unless the presumption is overcome in a judicial proceeding, a valid denial of parentage is
83made under section 11 or a court adjudicates the person to be a parent.
84 “Surrogacy agreement”, an agreement between 1 or more intended parents and a person
85who is not an intended parent in which that person agrees to become pregnant through assisted
86reproduction and which provides that each intended parent is a parent of a child conceived under
87the agreement.
88 “Surrogate”, a genetic surrogate or gestational surrogate.
89 SECTION 11. Section 2 of said chapter 209C, as appearing in the 2022 Official Edition,
90is hereby amended by striking out, in line 1, the word “Paternity” and inserting in place thereof
91the following word:- Parentage.
92 SECTION 12. Said section 2 of said chapter 209C, as so appearing, is hereby further
93amended by striking out, in lines 5, 6, 12, 13, 16 and 18, the word “paternity” and inserting in
94place thereof, in each instance, the following word:- parentage.
95 SECTION 13. Section 3 of said chapter 209C, as so appearing, is hereby amended by
96striking out, in lines 3, 7, 32, 35 and 36 and 51, the word “paternity” and inserting in place
97thereof, in each instance, the following word:- parentage. 6 of 42
98 SECTION 14. Said section 3 of said chapter 209C, as so appearing, is hereby further
99amended by inserting after the word “parentage”, in line 4, the following words:- under this
100chapter.
101 SECTION 15. Said section 3 of said chapter 209C, as so appearing, is hereby further
102amended by striking out, in line 13, the word “his” and inserting in place thereof the following
103word:- their.
104 SECTION 16. Section 4 of said chapter 209C, as so appearing, is hereby amended by
105striking out, in lines 1 and 11, the word “paternity” and inserting in place thereof, in each
106instance, the following word:- parentage.
107 SECTION 17. Section 5 of said chapter 209C, as so appearing, is hereby amended by
108striking out, in lines 1 and 2, 19, 55, 60 and 62, the word “paternity” and inserting in place
109thereof, in each instance, the following word:- parentage.
110 SECTION 18. Said section 5 of said chapter 209C, as so appearing, is hereby further
111amended by striking out, in line 3, the word “mother” and inserting in place thereof the following
112words:- person who gave birth to the child.
113 SECTION 19. Said section 5 of said chapter 209C, as so appearing, is hereby further
114amended by striking out, in lines 4 and 21, the word “himself” and inserting in place thereof, in
115each instance, the following word:- themselves.
116 SECTION 20. Said section 5 of said chapter 209C, as so appearing, is hereby further
117amended by striking out, in lines 4 and 9, each time it appears, the word “father” and inserting in
118place thereof, in each instance, the following words:- other parent. 7 of 42
119 SECTION 21. Said section 5 of said chapter 209C, as so appearing, is hereby further
120amended by striking out, in line 7, the words “mother if the mother” and inserting in place
121thereof the following words:- person who gave birth to the child if that person.
122 SECTION 22. Said section 5 of said chapter 209C, as so appearing, is hereby further
123amended by striking out, in line 17, the words “mother of the child” and inserting in place
124thereof the following words:- person who gave birth to the child.
125 SECTION 23. Said section 5 of said chapter 209C, as so appearing, is hereby further
126amended by striking out, in lines 21 and 22, the words “father unless he is or was the mother’s
127husband” and inserting in place thereof the following words:- parent unless such parent is or was
128the spouse of the person who gave birth to the child.
129 SECTION 24. Said section 5 of said chapter 209C, as so appearing, is hereby further
130amended by striking out subsection (b) and inserting in place thereof the following subsection:-
131 (b) Voluntary acknowledgments of parentage may be executed by the person who gave
132birth and either an alleged genetic parent, presumed parent or intended parent as provided in this
133chapter, whether either or both is a minor, and may be registered pursuant to section 11 only if
134the signatures of both signatories are notarized. If the person who gave birth to the child was or
135is married to a spouse other than the other parent and the child’s birth occurs during the marriage
136or within 300 days of its termination by divorce, a voluntary acknowledgment of parentage
137naming the other parent may be executed by the person who gave birth and the other parent only
138if the person who gave birth and their spouse or former spouse at the time of the child’s birth or
139conception sign an affidavit denying that the spouse is the parent of the child; provided,
140however, that where the marriage has been terminated by annulment or by the death of either 8 of 42
141spouse, parentage of the other parent may only be established by filing a complaint to establish
142parentage as provided in this chapter. Prior to signing a voluntary acknowledgment of parentage
143at the hospital or thereafter at the office of the city or town clerk as part of the birth registration
144process pursuant to section 3C of chapter 46, with the department of transitional assistance, with
145the IV–D agency set forth in chapter 119A, with any agency designated by the United States
146Secretary of Health and Human Services or with any official of a court, a person who gave birth
147and the other parent shall receive notice orally, or through the use of video or audio equipment,
148and in writing of alternatives to signing the acknowledgment, including the availability of
149genetic marker testing, as well as the benefits and responsibilities with respect to child support,
150custody and visitation that may arise from signing the acknowledgment and subsequently filing
151the acknowledgment with the court or with the registrar of vital records and statistics as provided
152in this chapter.
153 SECTION 25. Section 6 of said chapter 209C, as so appearing, is hereby amended by
154striking out, in lines 1 and 2, the words “In all actions under this chapter a man is presumed to be
155the father of a child and must be joined as a party” and inserting in place thereof the following
156words:- A person is presumed to be the parent of a child and shall be joined as a party in all
157actions under this chapter.
158 SECTION 26. Said section 6 of said chapter 209C, as so appearing, is hereby further
159amended by striking out, in lines 3, 6, 11, 14, 16 and 18, the word “he” and inserting in place
160thereof, in each instance, the following words:- the person. 9 of 42
161 SECTION 27. Said section 6 of said chapter 209C, as so appearing, is hereby further
162amended by striking out, in line 3, 7, 12 and 19, the word “mother” and inserting in place
163thereof, in each instance, the following words:- person who gave birth to the child.
164 SECTION 28. Said section 6 of said chapter 209C, as so appearing, is hereby further
165amended by striking out, in line 17, the word “paternity” and inserting in place thereof the
166following word:- parentage.
167 SECTION 29. Said section 6 of said chapter 209C, as so appearing, is hereby further
168amended by striking out, in lines 21 to 23, inclusive, the words “he has acknowledged paternity
169in a parental responsibility claim as provided in section four A of chapter two hundred and ten
170and the mother” and inserting in place thereof the following words:- the person has
171acknowledged parentage in a parental responsibility claim as provided in section 4A of chapter
172210 and the person who gave birth to the child.
173 SECTION 30. Said section 6 of said chapter 209C, as so appearing, is hereby further
174amended by striking out, in lines 25 to 27, inclusive, the words “his consent and the consent of
175the child’s mother, he is named as the child’s father” and inserting in place thereof the following
176words:- the person’s consent and the consent of the person who gave birth to the child, the
177person is named as the child’s parent.
178 SECTION 31. Said section 6 of said chapter 209C, as so appearing, is hereby further
179amended by striking out subsection (b) and inserting in place thereof the following subsection:-
180 (b) Notwithstanding subsection (a), a spouse or former spouse shall not be required to be
181joined as a party if that person’s non-parentage of the child has previously been adjudicated in a 10 of 42
182proceeding between the spouse and the person who gave birth to the child in a court or
183administrative agency of competent jurisdiction.
184 SECTION 32. Section 7 of said chapter 209C, as so appearing, is hereby amended by
185striking out, in lines 3 and 4 and 8, the word “paternity” and inserting in place thereof, in each
186instance, the following word:- parentage.
187 SECTION 33. Section 8 of said chapter 209C, as so appearing, is hereby amended by
188striking out, in lines 1, 2, 5 and 15, the word “paternity” and inserting in place thereof, in each
189instance, the following word:- parentage.
190 SECTION 34. Said section 8 of said chapter 209C, as so appearing, is hereby further
191amended by striking out, in line 4, the word “his” and inserting in place thereof the following
192words:- the defendant’s.
193 SECTION 35. Said section 8 of said chapter 209C, as so appearing, is hereby further
194amended by striking out, in line 7, the words “mother or putative father submits” and inserting in
195place thereof the following words:- person who gave birth to the child or alleged genetic parent
196submits sufficient evidence of parentage, which may include evidence.
197 SECTION 36. Said section 8 of said chapter 209C, as so appearing, is hereby further
198amended by striking out, in lines 12 and 13, the words “father or mother” and inserting in place
199thereof the following word:- parent.
200 SECTION 37. Said section 8 of said chapter 209C, as so appearing, is hereby further
201amended by striking out, in line 16, the word “mother” and inserting in place thereof the
202following words:- person who gave birth to the child. 11 of 42
203 SECTION 38. Section 9 of said chapter 209C, as so appearing, is hereby amended by
204striking out, in line 21, the word “his” and inserting in place thereof the following words:- the
205defendant’s.
206 SECTION 39. Said section 9 of said chapter 209C, as so appearing, is hereby further
207amended by striking out, in line 27, the word “mother” and inserting in place thereof the
208following words: another parent.
209 SECTION 40. Subsection (a) of section 10 of said chapter 209C, as so appearing, is
210hereby amended by striking out the first paragraph and inserting in place thereof the following
211paragraph:-
212 Upon or after an adjudication or voluntary acknowledgment of parentage, the court may
213award custody of a nonmarital child to either parent or to them jointly or to another suitable
214person as hereafter further specified as may be appropriate in the best interests of the child.
215 SECTION 41. Said section 10 of said chapter 209C, as so appearing, is hereby further
216amended by striking out subsection (b) and inserting in place thereof the following subsection:-
217 (b) Prior to or in the absence of an adjudication or voluntary acknowledgment of
218parentage, the person who gave birth shall have custody of a nonmarital child. In the absence of
219an order or judgment of a probate and family court relative to custody, the person who gave birth
220shall continue to have custody of a nonmarital child after an adjudication of parentage or
221voluntary acknowledgment of parentage. 12 of 42
222 SECTION 42. Section 11 of said chapter 209C, as so appearing, is hereby amended by
223striking out, in line 2, the words “putative father” and inserting in place thereof the following
224words:- alleged genetic parent, presumed parent or intended parent.
225 SECTION 43. Said section 11 of said chapter 209C, as so appearing, is hereby further
226amended by striking out, in line 3, the words “mother of” and inserting in place thereof the
227following words:- person who gave birth to.
228 SECTION 44. Said section 11 of said chapter 209C, as so appearing, is hereby further
229amended by striking out, in lines 7, 16, 20, 22 and 37, the word “paternity” and inserting in place
230thereof, in each instance, the following word:- parentage.
231 SECTION 45. Said section 11 of said chapter 209C, as so appearing, is hereby further
232amended by striking out, in line 21, the words “by such putative father and mother”.
233 SECTION 46. Subsection (a) of said section 11 of said chapter 209C, as so appearing, is
234hereby amended by striking out the tenth sentence and inserting in place thereof the following
235sentence:- If either party rescinds the acknowledgment in a timely fashion and the basis of the
236acknowledgment was genetic parentage, the court shall order genetic marker testing and proceed
237to adjudicate parentage or nonparentage in accordance with this chapter; provided, however, that
238the rescinded acknowledgment shall constitute the proper showing required for an order to
239submit to such testing; and provided further, that the rescinded acknowledgment shall be
240admissible as evidence of the alleged genetic parent’s parentage and shall serve as sufficient
241basis for admitting the report of the results of genetic marker tests. 13 of 42
242 SECTION 47. Said section 11 of said chapter 209C, as so appearing, is hereby further
243amended by striking out, in line 56, the word “nonpaternity” and inserting in place thereof the
244following word:- nonparentage.
245 SECTION 48. Said section 11 of said chapter 209C, as so appearing, is hereby further
246amended by striking out, in line 59, the words “a mother and father” and inserting in place
247thereof the following word:- parents.
248 SECTION 49. Section 12 of said chapter 209C, as so appearing, is hereby amended by
249striking out, in line 2, the word “paternity” and inserting in place thereof the following word:-
250parentage.
251 SECTION 50. Section 13 of said chapter 209C, as so appearing, is hereby amended by
252striking out, in lines 1 and 2, the words “paternity or in which paternity” and inserting in place
253thereof the following words:- parentage or in which parentage.
254 SECTION 51. Said section 13 of said chapter 209C, as so appearing, is hereby further
255amended by striking out, in lines 7 to 9, inclusive, the words “father is adjudicated not to be the
256father of the child; provided, however, that the child, the child’s mother, the person adjudicated
257to be the father” and inserting in place thereof the following words:- parent is adjudicated not to
258be the parent of the child; provided, however, that the child, the person who gave birth to the
259child, the person adjudicated to be the parent.
260 SECTION 52. Said chapter 209C is hereby further amended by striking out section 14, as
261so appearing, and inserting in place thereof the following section:- 14 of 42
262 Section 14. Except as otherwise provided in this chapter, an action to establish parentage
263of a child may be instituted during pregnancy but shall only be filed by the person who is to give
264birth to the child or such person’s representative or by the IV-D agency as set forth in chapter
265119A on behalf of the person who is to give birth. In the case of any complaint brought prior to
266the birth of the child, no final judgment on the issue of parentage shall be made until after the
267birth of the child; provided, however, that the court may order temporary support or health care
268coverage.
269 SECTION 53. Section 16 of said chapter 209C, as so appearing, is hereby amended by
270striking out subsections (c) to (e), inclusive, and inserting in place thereof the following 3
271subsections:-
272 (c) In an action pursuant to this chapter, the person who gave birth and the alleged
273genetic parent shall be competent to testify and no privilege or disqualification created under
274chapter 233 shall prohibit testimony by a spouse or former spouse which is otherwise competent.
275If the person who gave birth is or was married, both that person and their spouse or former
276spouse may testify to parentage of the child.
277 (d) In an action to establish parentage, testimony relating to sexual access to the person
278who gave birth by an unidentified person at any time or by an identified person at any time other
279than the probable time of conception of the child is inadmissible in evidence unless offered by
280the person who gave birth.
281 (e) In an action to establish parentage based on alleged genetic parentage, the court may
282view the person who gave birth, the child and the alleged genetic parent to note any resemblance
283among the parties notwithstanding the absence of expert testimony. 15 of 42
284 SECTION 54. Said section 16 of said chapter 209C, as so appearing, is hereby further
285amended by striking out, in line 25, the word “mother” and inserting in place thereof the
286following words:- person who gave birth to the child.
287 SECTION 55. Said section 16 of said chapter 209C, as so appearing, is hereby further
288amended by striking out, in line 36, the word “paternity” and inserting in place thereof the
289following word:- parentage.
290 SECTION 56. Section 17 of said chapter 209C, as so appearing, is hereby amended by
291striking out, in lines 1 and 2, the words “paternity of a child born out of wedlock” and inserting
292in place thereof the following words:- parentage of a nonmarital child based on alleged genetic
293parentage.
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 and 28, the word “mother” and inserting in
296place thereof, in each instance, the following words:- person who gave birth to the child.
297 SECTION 58. Said section 17 of said chapter 209C, as so appearing, is hereby further
298amended by striking out, in lines 4, 9, 10, 13, 26, 28, 31, 48 and 49, the words “putative father”
299and inserting in place thereof, in each instance, the following words:- alleged genetic parent.
300 SECTION 59. Said section 17 of said chapter 209C, as so appearing, is hereby further
301amended by striking out, in lines 21 and 22, the words “putative father’s” and inserting in place
302thereof the following words:- alleged genetic parent’s. 16 of 42
303 SECTION 60. Said section 17 of said chapter 209C, as so appearing, is hereby further
304amended by striking out, in lines 22 and 30, the word “paternity” and inserting in place thereof,
305in each instance, the following words:- genetic parentage.
306 SECTION 61. Said section 17 of said chapter 209C, as so appearing, is hereby further
307amended by striking out, in lines 31 and 32 and in line 49, the first time it appears, the word
308“father” and inserting in place thereof, in each instance, the following word:- parent.
309 SECTION 62. Said section 17 of said chapter 209C, as so appearing, is hereby further
310amended by adding the following sentence:- Genetic testing shall not be used to challenge the
311parentage of an individual who is a parent under sections 25, 27 and 28 to 28P, inclusive, or to
312establish the parentage of an individual who is a donor as provided in said sections.
313 SECTION 63. Section 21 of said chapter 209C, as so appearing, is hereby amended by
314striking out, in line 4, the word “paternity” and inserting in place thereof the following word:-
315parentage.
316 SECTION 64. Section 23 of said chapter 209C, as so appearing, is hereby amended by
317striking out, in lines 1, 10, 11 and 14, the word “paternity”, and inserting in place thereof, in each
318instance, the following word:- parentage.
319 SECTION 65. Said chapter 209C is hereby further amended by adding the following 20
320sections:-
321 Section 25. (a) This section shall apply to nonmarital and marital children. 17 of 42
322 (b) A proceeding to adjudicate parentage of a child under this section may be
323commenced only by a person who: (i) is alive when the proceeding is commenced; and (ii)
324claims to be a de facto parent of the subject child under this section.
325 (c) A proceeding under this section shall be commenced during a child’s lifetime and
326before the child attains 18 years of age.
327 (d) Proceedings under this section shall be governed by the Massachusetts Rules of
328Domestic Relations Procedure.
329 (e) All parents, legal guardians and legal custodians of the subject child shall be entitled
330to notice.
331 (f) The plaintiff shall file a verified complaint alleging specific facts to support each
332element required to establish de facto parentage as set forth in subsection (i), along with any
333other pleadings, affidavits or information required by the court. The verified complaint shall be
334served on all parents, legal guardians and legal custodians of the child and any other party to the
335proceeding. Prior to an adjudication of the merits, and within 60 days of the commencement of a
336proceeding under this section, the court shall determine, based on the pleadings, whether the
337plaintiff has alleged facts sufficient to satisfy each element required to establish de facto
338parentage. Upon request made by a party entitled to notice or upon the court’s own initiative, the
339court may hold a hearing on the sufficiency of the pleadings; provided, however, that if the court
340holds any such hearing, the hearing shall be held on an expedited basis. Failure of a pleading to
341meet these standards shall constitute grounds for the court to enter a sua sponte judgment of
342dismissal without prejudice. 18 of 42
343 (g) Prior to an adjudication of the merits, and within 60 days of the commencement of a
344proceeding under this section, the court shall determine whether the plaintiff has standing to seek
345an adjudication of parentage of a child under this section. Upon request made by a party entitled
346to notice or upon the court’s own initiative, the court may hold a hearing on the issue of
347standing; provided, however, that any such hearing shall be held on an expedited basis; and
348provided further, that a hearing shall be required and there shall be a rebuttable presumption
349against standing if the court finds by a preponderance of the evidence that:
350 (i) the plaintiff is or was the defendant to: (A) an abuse prevention order issued after
351notice and hearing pursuant to chapter 209A; (B) a protection order issued pursuant to section
35234B or 34C of chapter 208; or (C) a harassment prevention order issued pursuant to chapter
353258E, involving the child, a parent of the child or a household member of the child;
354 (ii) the department of children and families has made a determination supporting an
355allegation of abuse against the plaintiff with respect to the subject child or another child in the
356same household;
357 (iii) a defendant parent has been an active deployed member of the military during the
358past 3 years;
359 (iv) a defendant parent executed a military family care plan and but for the plan, the
360plaintiff would not meet at least 1 of the requirements of subsection (i), unless the defendant
361consents in writing and such written consent is filed with the complaint; or
362 (v) the plaintiff is or was the foster parent of the child and but for the plaintiff’s role as
363foster parent, the plaintiff would not meet at least 1 of the requirements of subsection (i). 19 of 42
364 (h) A plaintiff may file and serve a motion seeking a temporary order of contact between
365the subject child and the plaintiff contemporaneously with the complaint. After a hearing, the
366court may enter a temporary order concerning contact between the child and the plaintiff. No
367temporary order shall issue before a determination of standing; provided, however, that a hearing
368on the motion may occur on the same date as any hearing under subsections (f) or (g).
369 (i) Subject to subsection (j), the court shall adjudicate a plaintiff with standing in a
370proceeding commenced under this section to be a legal parent of the subject child if the plaintiff
371demonstrates by clear and convincing evidence that: (i) the plaintiff resided with the child as a
372regular member of the child’s household for not less than 3 years or 40 per cent of the child’s
373life, whichever is shorter, except in extraordinary circumstances for good cause shown as the
374court may determine at the court's discretion; (ii) the plaintiff engaged in consistent caregiving of
375the child, including, but not limited to, shaping the child’s daily routine, addressing the child’s
376developmental needs and providing for the child’s education and medical care, individually or
377cooperatively with another parent; (iii) the plaintiff undertook full and permanent responsibilities
378of a parent of the child without expectation or payment of financial compensation; (iv) the
379plaintiff held out the child as the plaintiff’s child; (v) the plaintiff established a bonded and
380dependent relationship with the child that is parental in nature; (vi) each parent of the child
381consented to the bonded and dependent relationship required under clause (v); provided,
382however, that for the purposes of this section, consent may include that each parent, over a
383period of not less than 6 months: (a) held out the plaintiff as a parent of the child; and (b)
384engaged in shared decision making with the plaintiff regarding significant issues of the child’s
385education, health and welfare; provided further, that the court may determine that a parent has
386impliedly consented where that parent has not, without good cause, meaningfully engaged with 20 of 42
387the subject child through direct contact, participation in decision making or regular financial
388support for a period of 2 years; provided further, that good cause may include evidence that the
389parent attempted to meaningfully engage with the subject child by regularly requesting contact or
390participation in decision making but was prevented from doing so by another person; and
391provided further, that a notarized document affirming consent executed by a parent shall be
392evidence of that parent’s consent; and (vii) adjudicating the plaintiff to be the child’s parent is in
393the best interest of the child. In making this determination, the court shall consider evidence of
394past or present abuse by the plaintiff toward a parent or the child as a factor contrary to the best
395interest of the child; provided, however, that a finding by a preponderance of the evidence that
396the plaintiff engaged in duress, coercion or threat of harm in order to establish any of the
397elements of clauses (i) to (vi), inclusive, shall be considered evidence of abuse; provided further,
398that a finding by a preponderance of the evidence that a pattern or serious incident of abuse as
399defined in section 10 by the plaintiff against a parent or child has occurred shall create a
400rebuttable presumption that it is not in the best interest of the child that the plaintiff be
401adjudicated a parent; and provided further, that where there is credible evidence of abuse and the
402court adjudicates the plaintiff to be a parent of the subject child, the court shall make detailed
403written findings on the presence and nature of the abuse, its effect on the child and its impact on
404the plaintiff’s parenting ability.
405 (j) Subject to other limitations in this section, if in a proceeding to adjudicate the plaintiff
406as a de facto parent, there is more than 1 defendant parent and the court determines that the
407requirements of subsection (i) are satisfied, the court shall adjudicate parentage under subsection
408(c) of section 26. 21 of 42
409 (k) The adjudication of a plaintiff as a de facto parent under this section shall not affect
410the legal parentage of any other parent to the child and shall not be considered evidence of
411parental unfitness of a defendant parent to the child.
412 (l) Custody, parenting time, visitation and child support shall be determined in
413accordance with applicable laws, rules, regulations, orders and guidelines.
414 (m) Nothing in this section shall be interpreted to preclude an action in equity pursuant to
415section 6 of chapter 215 to establish a third-party right to visitation.
416 Section 26. (a) In a proceeding to adjudicate competing claims of, or challenges to,
417parentage of a child by 2 or more persons, the court shall adjudicate parentage in the best interest
418of the child, based on: (i) the age of the child; (ii) the length of time during which each person
419assumed the role of parent of the child; (iii) the nature of the relationship between the child and
420each person; (iv) the harm to the child if the relationship between the child and each person is not
421recognized; (v) the basis for each person’s claim to parentage of the child; and (vi) other
422equitable factors arising from the disruption of the relationship between the child and each
423person or the likelihood of other harm to the child.
424 (b) If a person challenges parentage based on the results of genetic testing, in addition to
425the factors listed in subsection (a), the court shall consider: (i) the facts surrounding the
426discovery that the person might not be a genetic parent of the child; and (ii) the length of time
427between the time that the person was placed on notice that the person might not be a genetic
428parent and the commencement of the proceeding. 22 of 42
429 (c) The court may adjudicate a child to have more than 2 parents if the court finds that it
430is in the best interest of the child. A finding of best interest of the child under this section does
431not require a finding of unfitness of any parent or person seeking an adjudication of parentage.
432 (d) Custody, parenting time, visitation and child support shall be determined in
433accordance with applicable laws, rules, regulations, orders and guidelines.
434 Section 27. (a) This section shall apply to nonmarital and marital children. This section
435shall not apply to the parentage of a child conceived by sexual intercourse or assisted
436reproduction under a surrogacy agreement under sections 28 to 28P, inclusive.
437 (b) Venue for a proceeding to adjudicate parentage under this section shall be in the
438county in which: (i) the child resides or was born or is reasonably expected to be born; (ii) any
439parent or intended parent of the child resides; or (iii) a proceeding has been commenced for
440administration of the estate of a person who is or may be a parent under this chapter.
441 (c) A donor shall not be a parent of a child conceived through assisted reproduction based
442on the donor’s genetic connection to such child. A donor shall not be entitled to establish the
443donor's parentage by signing an acknowledgment pursuant to this chapter. A donor shall not be
444entitled to notice in a proceeding under this chapter.
445 (d) A person who consents to assisted reproduction with the intent to be a parent of the
446child conceived by said assisted reproduction shall be a parent of the child. Consent to assisted
447reproduction may be established by: (i) a record signed by the person giving birth to a child
448conceived by assisted reproduction and by an intended parent before, on or after the birth of the
449child; or (ii) a finding by the court, by a preponderance of the evidence, that: (A) prior to
450conception or birth of the child, the parties agreed that they would be parents of the child; or (B) 23 of 42
451the person who seeks to be a parent of the child, together with the person giving birth,
452voluntarily participated in and consented to the assisted reproduction that resulted in the
453conception of the child.
454 (e)(1) Except as provided in paragraph (2), a person who, at the time of a child’s birth, is
455the spouse of the person who gave birth to the child by assisted reproduction may not challenge
456their own parentage of the child unless, not later than 2 years after the birth of the child, they
457commence a proceeding to adjudicate their own parentage of the child and the court finds that
458they did not consent to the assisted reproduction before, on, or after the birth of the child or
459withdrew consent pursuant to subsection (g).
460 (2) A proceeding to adjudicate a spouse’s parentage of a child born by assisted
461reproduction may be commenced at any time if the court determines that the spouse who is
462challenging the parentage: (i) neither provided a gamete for, nor consented to, the assisted
463reproduction; (ii) has not cohabitated with the person who gave birth to the child since the
464probable time of assisted reproduction; or and (iii) never openly held out the child as their child.
465This subsection shall apply to a spouse’s challenge of parentage even if the spouse’s marriage is
466declared invalid after assisted reproduction occurs.
467 (f) A person who consents to assisted reproduction pursuant to subsection (d) may
468withdraw consent any time before a transfer or implantation of gametes or embryos that results
469in a pregnancy by giving notice in writing of their withdrawal of consent to the person who
470agreed to give birth to a child conceived by assisted reproduction and to any clinic or healthcare
471provider facilitating the assisted reproduction; provided, however, that failure to give notice to a
472clinic or healthcare provider shall not affect a determination of parentage pursuant to this section. 24 of 42
473A person who withdraws consent in compliance with this subsection shall not be a parent of the
474child under this section.
475 (g)(1) If a person who intends to be a parent of a child conceived by assisted reproduction
476dies during the period between the transfer or implantation of a gamete or embryo and the birth
477of the child, said person’s death shall not preclude the establishment of their parentage of the
478child if said person would be a parent of the child under this section but for the death.
479 (2) If a person who consented in writing to assisted reproduction by a person who agreed
480to give birth to a child dies before a transfer or implantation of gametes or embryos, the deceased
481person shall be a parent of a child conceived by the assisted reproduction if: (i) (A) the person
482consented in writing that if assisted reproduction were to occur after their death, they would be a
483parent of the child; or (B) the person’s intent to be a parent of a child conceived by assisted
484reproduction after their death is established by a preponderance of the evidence; and (ii) (A) the
485embryo is in utero not later than 36 months after the person’s death; or (B) the child is born not
486later than 45 months after the person’s death.
487 (h) If, due to a clinical or laboratory error, a child conceived by assisted reproduction is
488not genetically related to any intended parent or any donor who donated to the intended parent or
489parents, the intended parent or parents shall be the parent or parents of the child unless otherwise
490determined by the court.
491 (i) Genetic testing, including genetic marker testing pursuant to section 11, shall not be
492used to: (i) challenge the parentage of a person who is a parent pursuant to this section; or (ii)
493establish the parentage of a person who is a donor. 25 of 42
494 (j) (1)A person giving birth or a person who is or claims to be a parent pursuant to this
495section may commence a proceeding prior to or after the birth of a child by assisted reproduction
496to obtain a judgment: (i) declaring that the intended parent or parents are the parent or parents of
497the resulting child immediately upon the birth of the child and ordering that parental rights and
498responsibilities vest exclusively in the intended parent or parents immediately upon birth of the
499child; and (ii) designating the contents of the birth certificate and directing the department of
500public health to designate the intended parent or parents as the parent or parents of the resulting
501child.
502 (2) A judgment issued by a court pursuant to this subsection before the birth of the
503resulting child by assisted reproduction shall not take effect until the birth of the resulting child.
504Nothing in this subsection shall be construed to limit said court’s authority to issue orders under
505any other provision of the General Laws.
506 (3) The commonwealth, the department of public health and the hospital where the child
507is or is expected to be born shall not be necessary parties to a proceeding under this section.
508 (4) The burden of proof in proceedings pursuant to this section shall be by a
509preponderance of the evidence.
510 (k) At the request of a party to a proceeding pursuant to this section, the court shall close
511the proceeding to the general public.
512 (l) The court shall issue a final judgment adjudicating whether a person alleged or
513claiming to be a parent is the parent of a child in a proceeding pursuant to this section. At the
514request of a party, and subject to other applicable laws, the court in a proceeding pursuant to this
515section may order the legal name of the child to be changed. If the final judgment of the court is 26 of 42
516at variance with the child’s birth certificate, the court shall order the department of public health
517to issue an amended birth certificate that conforms with the final judgment.
518 (m) Custody, parenting time, visitation and child support for a nonmarital child shall be
519determined in accordance with applicable laws, rules, regulations, orders and guidelines.
520 (n) A spouse who has commenced an action for divorce, or a spouse who has been served
521with a complaint for divorce, may begin assisted reproduction pursuant to this section; provided,
522however, that the spouse that does not begin assisted reproduction pursuant to this section shall
523not be a parent of any child born as a result of the assisted reproduction unless both parties
524consent in writing to be parents of the child after commencement of the divorce action. A spouse
525who proceeds with assisted reproduction pursuant to this section shall not utilize gametes of their
526spouse unless their spouse consents in writing to the use of their gametes for assisted
527reproduction by the spouse after commencement of a divorce action.
528 Section 28. (a) Sections 28 to 28P, inclusive, shall apply to nonmarital and marital
529children. This section shall not apply to the birth of a child conceived by sexual intercourse or
530assisted reproduction under section 27.
531 (b) Venue for proceedings under sections 28 to 28P, inclusive, shall be in the county in
532which: (i) the child resides, is born or pursuant to a surrogacy agreement is expected to be born;
533(ii) a parent or intended parent of the child resides; (iii) a person acting as a surrogate resides; or
534(iv) a proceeding has been commenced for administration of the estate of a person who is or may
535be a parent under this chapter.
536 Section 28A. (a) To execute a surrogacy agreement to act as a surrogate, a person shall:
537(i) be not less than 21 years of age; (ii) have previously given birth to at least 1 child; (iii) 27 of 42
538complete a medical evaluation by a licensed physician related to surrogacy; and (iv) complete a
539mental health consultation by a licensed mental health professional that is independent of the
540health care providers or facility undertaking any assisted reproduction procedure contemplated
541by the surrogacy agreement.
542 (b) To execute a surrogacy agreement as an intended parent, whether or not genetically
543related to the child, a person shall: (i) be not less than 21 years of age; and (ii) complete a mental
544health consultation by a licensed mental health professional that is independent of the health care
545providers or facility undertaking any assisted reproduction procedure contemplated by the
546surrogacy agreement.
547 Section 28B. A surrogacy agreement shall be enforceable if:
548 (i) the prospective surrogate, their spouse, if any, and each intended parent are parties to
549the agreement;
550 (ii) the prospective surrogate and each intended parent meet the eligibility requirements
551of section 28A;
552 (iii) at least 1 party is a resident of the commonwealth or, if no party is a resident of the
553commonwealth, at least 1 medical evaluation, medical procedure or mental health consultation
554under the agreement occurs in the commonwealth;
555 (iv) the agreement is in writing and signed by all parties;
556 (v) the agreement is executed prior to a medical procedure attempting to cause a
557pregnancy in the prospective surrogate, other than the medical evaluation and mental health 28 of 42
558consultation required by section 28A, and, in every instance, before transfer of embryos or
559gametes;
560 (vi) the signature of each party to the agreement is attested by a notary;
561 (vii) each party to the agreement signs a written acknowledgment of having received a
562copy of the agreement;
563 (viii) the prospective surrogate, the surrogate’s spouse, if any, and each intended parent
564have independent legal representation regarding the terms and potential legal consequences of
565the surrogacy agreement, paid for by the intended parent or parents, and each legal representative
566shall be identified in the surrogacy agreement; provided, however, that a single attorney for the
567prospective surrogate and their spouse and a single attorney for the intended parents shall be
568sufficient to meet this requirement; and
569 (ix) records related to the medical evaluation and mental health consultations conducted
570pursuant to section 28A shall be made available to the surrogate, the surrogate’s spouse, if any,
571and each intended parent; provided, however, that all such records shall remain otherwise
572confidential absent a court order.
573 Section 28C. (a) For a surrogacy agreement to be enforceable, the agreement shall
574provide that:
575 (i) the surrogate: (A) shall undergo assisted reproduction and attempt to carry and give
576birth to any resulting child; (B) except as otherwise provided in sections 28I, 28M and 28N, shall
577have no claim to parentage of any resulting child; and (C) acknowledges the exclusive parentage
578of the intended parent or parents of all resulting children; 29 of 42
579 (ii) if the surrogate is married, their spouse: (A) acknowledges and agrees to abide by all
580obligations imposed on the surrogate by the terms of the surrogacy agreement; (B) except as
581otherwise provided in sections 28I, 28M and 28N, shall have no claim to parentage of any
582resulting child; and (C) acknowledges the exclusive parentage of the intended parent or parents
583of all resulting children; and
584 (iii) the intended parent or, if there are more than 1 intended parents, each parent jointly
585and severally: (A) except as otherwise provided in sections 28G, 28J, 28M and 28N, agree to be
586the exclusive parent or parents and accept parental rights and responsibilities of all resulting
587children regardless of the number of children born or the gender or condition of each child; and
588(B) except as otherwise provided in sections 28G, 28J, 28M and 28N, agree to assume
589responsibility for the financial support of all resulting children immediately upon the birth of the
590children regardless of the number of children born or the gender or condition of each child.
591 (b) The intended parent or parents shall pay for all surrogacy-related expenses of the
592surrogate, including expenses for healthcare provided for assisted reproduction, prenatal care,
593labor and delivery and the medical expenses of all resulting children, that are not covered by
594insurance; provided, however, that this subsection shall not be construed to supplant any health
595insurance coverage that is otherwise available to the surrogate or an intended parent for the
596coverage of healthcare costs; provided further, that this subsection shall not change the health
597insurance coverage of the surrogate or the responsibility of the insurance company to pay
598benefits under a policy that covers a surrogate.
599 (c) The surrogacy agreement shall not infringe on the rights of the surrogate to make all
600health decisions regarding the surrogate, the surrogate’s body and the surrogate’s pregnancy 30 of 42
601throughout the duration of the surrogacy agreement, including during attempts to become
602pregnant, pregnancy, labor and delivery and post-partum. The surrogacy agreement shall not
603infringe upon the right of the surrogate to autonomy in medical decision making, including, but
604not limited to, whether to consent to a caesarean section and whether to undergo multiple embryo
605transfers. Except as otherwise provided by law, any written or oral agreement purporting to
606waive or limit these rights shall be void as against public policy.
607 (d) The surrogacy agreement shall include information about the right of each party to
608terminate the surrogacy agreement.
609 (e) Rights created under a surrogacy agreement shall not be assignable and there shall be
610no third-party beneficiary to a surrogacy agreement other than the resulting child of the
611surrogacy.
612 (f) A surrogacy agreement may provide for: (i) payment of consideration and reasonable
613expenses; and (ii) reimbursement of specific expenses if the agreement is terminated pursuant to
614this chapter.
615 Section 28D. Unless a surrogacy agreement expressly provides otherwise: (i) the validity
616of a surrogacy agreement shall not be affected by the marriage of the surrogate or of an intended
617parent after the surrogacy agreement has been signed by all parties and in such instances: (A) the
618surrogate’s spouse’s or intended parent’s spouse’s consent to the surrogacy agreement shall not
619be required; and (B) the surrogate’s spouse or intended parent’s spouse shall not be a presumed
620parent of a child conceived by assisted reproduction under the surrogacy agreement; or (ii) the
621divorce or marriage annulment of the surrogate or of an intended parent after the surrogacy
622agreement has been signed by all parties shall not affect the validity of the surrogacy agreement. 31 of 42
623 Section 28E. After the execution of a surrogacy agreement and before the date of
624termination of the surrogacy agreement pursuant its terms or 180 days after the birth of a child
625conceived by assisted reproduction under the surrogacy agreement, whichever occurs earlier, the
626court conducting a proceeding under sections 28 to 28P, inclusive, shall have exclusive,
627continuing jurisdiction over all matters arising out of the surrogacy agreement; provided,
628however, that the court shall not have jurisdiction over a child custody or child support
629proceeding if jurisdiction is not otherwise authorized.
630 Section 28F. (a) A party to a gestational surrogacy agreement may terminate the
631agreement at any time before an embryo transfer or implantation by giving written notice of
632termination to all other parties. If an embryo transfer or implantation does not result in
633pregnancy, a party may terminate the agreement at any time before a subsequent embryo transfer
634or implantation.
635 (b) Unless a gestational surrogacy agreement provides otherwise, upon termination of the
636agreement under subsection (a), the parties shall be released from the agreement; provided,
637however, that the intended parent or parents remain responsible for expenses that are
638reimbursable under the agreement and incurred by the gestational surrogate through the date of
639the termination of the agreement.
640 (c) Except in a case involving fraud, neither a gestational surrogate nor the surrogate’s
641spouse or former spouse, if any, shall be liable to the intended parent or parents for punitive or
642liquidated damages for terminating a gestational surrogacy agreement in compliance with this
643section. 32 of 42
644 Section 28G. (a) Except as otherwise provided in subsection (c), or sections 28H or 28J,
645upon the birth of a child conceived by assisted reproduction under a gestational surrogacy
646agreement, each intended parent shall be, by operation of law, a parent of the child. Parental
647rights shall vest exclusively in the intended parent or parents immediately upon birth of the
648resulting child.
649 (b) Except as otherwise provided in subsection (c) or section 28J, a person acting as
650gestational surrogate or such person’s spouse or former spouse, if any, shall not be, by operation
651of law, a parent of the child.
652 (c) If a child is alleged to be a genetic child of the gestational surrogate, the court shall,
653upon finding sufficient evidence, order genetic testing of the child. If the child is a genetic child
654of the gestational surrogate, parentage shall be determined in accordance with sections 1 to 27,
655inclusive.
656 (d) Except as otherwise provided in subsection (c),section 28H or section 28I, if, due to a
657clinical or laboratory error, a child conceived by assisted reproduction under a gestational
658surrogacy agreement is not genetically related to an intended parent or a donor who donated to
659the intended parent or parents, each intended parent shall be a parent of the child and the person
660acting as gestational surrogate and their spouse or former spouse, if any, shall not be a parent of
661the child.
662 (e) This section shall apply to an intended parent, including an intended parent who dies
663during the period between the transfer or implantation of a gamete or embryo and the birth of the
664child. 33 of 42
665 Section 28H. Except as otherwise provided in section 28J, an intended parent shall not be
666a parent of a child conceived by assisted reproduction under a gestational surrogacy agreement if
667the intended parent dies before the transfer or implantation of a gamete or embryo unless: (i) the
668surrogacy agreement provides otherwise; and (ii) the transfer of a gamete or embryo occurs not
669later than 36 months after the death of the intended parent or birth of the child occurs not later
670than 45 months after the death of the intended parent.
671 Section 28I. (a) Except as otherwise provided in subsection (c) of section 28G or section
67228J, before, on or after the birth of a child conceived by assisted reproduction under a gestational
673surrogacy agreement, any party to the agreement may commence a proceeding for a judgment of
674parentage:
675 (i) declaring that each intended parent is a parent of the child and ordering that parental
676rights and duties vest immediately upon the birth of the child exclusively in each intended
677parent;
678 (ii) declaring that the gestational surrogate and the surrogate’s spouse or former spouse, if
679any, are not the parents of the child;
680 (iii) designating the content of the birth record in accordance with chapter 46 and
681directing the department of public health to designate each intended parent as a parent of the
682child;
683 (iv) to protect the privacy of the child and the parties, declaring that the court record and
684related pleadings be impounded in accordance with this section;
685 (v) if necessary, ordering that the child be surrendered to the intended parent or parents; 34 of 42
686 (vi) if necessary, ordering that the hospital where the child will be or has been born, treat
687the intended parent or parents as the sole legal parent or parents for the purpose of naming and
688medical decisions; and
689 (vii) for other relief the court determines necessary and proper.
690 (b) The court may issue an order or judgment under subsection (a) before or after the
691birth of the child, as requested by the parties.
692 (c) The commonwealth, the department of public health, the town or city clerk and the
693hospital where the child is born or is intended to be born shall not be necessary parties to a
694proceeding under subsection (a). Any party to the surrogacy agreement not joining in the action
695shall be provided with notice of the proceeding.
696 (d) A complaint filed pursuant to this section shall include: (i) a copy of the executed
697surrogacy agreement; (ii) a sworn affidavit of the assisted reproductive physician confirming that
698the child was conceived pursuant to assisted reproduction; and (iii) certifications from the
699attorneys representing the intended parent or parents and the gestational surrogate that the
700requirements of sections 28A, 28B and 28C have been met. A complaint supported by such
701affidavit and certifications shall be sufficient to establish parentage and a hearing shall not be
702required unless the court requires additional information which cannot reasonably be ascertained
703without a hearing.
704 (e) Upon a finding by a preponderance of the evidence that the complaint satisfies
705subsection (d), a court shall expeditiously, but not later than 60 days from the docketing of the
706complaint, issue a judgment of parentage. Parentage judgments issued under this section shall
707conclusively establish or affirm, where applicable, the parent-child relationship for all purposes. 35 of 42
708Custody, parenting time, visitation and child support for a nonmarital child shall be determined
709in accordance with applicable laws, rules, regulations, orders and guidelines.
710 (f) In the event the certification required by subsection (d) cannot be made because of a
711technical or nonmaterial deviation from the requirements of sections 28A, 28B and 28C, the
712court with competent jurisdiction may enforce the agreement and issue a judgment of parentage
713if the court determines the agreement is in substantial compliance with the requirements of said
714sections.
715 (g) At the request of a party, the court of competent jurisdiction shall close a proceeding
716under this section to the general public. All complaints, pleadings, papers or documents filed
717pursuant to this section, and docket entries, shall not be available for inspection unless the court
718where such records are kept, for good cause shown, otherwise orders or unless requested by the
719child or the parties. All such complaints, pleadings, papers or documents shall be segregated.
720 Section 28J. (a) A gestational surrogacy agreement that substantially complies with
721sections 28A, 28B and 28C shall be enforceable.
722 (b) If a child was conceived by assisted reproduction under a gestational surrogacy
723agreement that does not substantially comply with sections 28A, 28B and 28C, the court shall
724determine the rights and duties of the parties to the agreement consistent with the intent of the
725parties at the time of execution of the agreement. Each party to the agreement and any person
726who at the time of the execution of the agreement was a spouse of a party to the agreement shall
727have standing to commence a proceeding to adjudicate an issue related to the enforcement of the
728agreement. 36 of 42
729 (c) Except as expressly provided in a gestational surrogacy agreement or subsection (d)
730or (e), if the agreement is breached by the gestational surrogate or 1 or more intended parents,
731the non-breaching party shall be entitled to the remedies available at law or in equity.
732 (d) Specific performance shall not be an available remedy for breach by a gestational
733surrogate of a provision in an agreement that the gestational surrogate become pregnant,
734terminate or not terminate a pregnancy or submit to medical procedures.
735 (e) Except as otherwise provided in subsection (d), if an intended parent is determined to
736be a parent of the child pursuant to this chapter, specific performance shall be a remedy available
737for: (i) breach of the agreement by a gestational surrogate which prevents the intended parent
738from exercising, immediately on birth of the child, the full rights of parentage; or (ii) breach by
739the intended parent which prevents the intended parent’s acceptance, immediately on birth of the
740child conceived by assisted reproduction under the agreement, of the duties of parentage.
741 Section 28K. (a) Except as otherwise provided in section 28N, a genetic surrogacy
742agreement shall be validated by a probate and family court. A proceeding to validate the
743agreement shall be commenced before assisted reproduction related to the surrogacy agreement.
744A complaint filed pursuant to this section shall include: (i) a copy of the executed surrogacy
745agreement; and (ii) certifications from the legal representatives of the intended parent or parents
746and the genetic surrogate that the requirements of sections 28A, 28B and 28C have been met.
747 (b) The court shall issue an order validating a genetic surrogacy agreement, within 60
748days of the commencement of such a proceeding, if the court finds by a preponderance of the
749evidence that: (i) sections 28A, 28B and 28C are satisfied; and (ii) all parties entered into the
750agreement voluntarily and understand its terms. 37 of 42
751 (c) A person who terminates a genetic surrogacy agreement under section 28L shall file
752notice of the termination with the court and parties. On receipt of the notice, the court shall
753vacate any order issued under subsection (b).
754 Section 28L. (a) An intended parent or genetic surrogate who is a party to the surrogacy
755agreement may terminate the agreement at any time before a gamete or embryo transfer or
756implantation by giving notice of termination in writing to all other parties. If a gamete or embryo
757transfer or implantation does not result in a pregnancy, a party may terminate the agreement at
758any time before a subsequent gamete or embryo transfer or implantation. The party’s signature
759on a notice of termination shall be attested by a notary.
760 (b) An intended parent or genetic surrogate who terminates the agreement after the court
761issues an order validating the agreement under sections 28K or 28N, but before the genetic
762surrogate becomes pregnant by means of assisted reproduction, shall file notice of the
763termination with the court.
764 (c) A person shall not terminate a validated genetic surrogacy agreement if a gamete or
765embryo transfer or implantation has resulted in a pregnancy.
766 (d) Upon the proper termination or completion of a genetic surrogacy agreement, the
767parties shall be released from all obligations under the agreement except that any intended parent
768or parents shall remain responsible for all expenses incurred by the genetic surrogate through the
769date of the completion which are reimbursable under the agreement. Unless the agreement
770provides otherwise, the genetic surrogate is not entitled to any non-expense related compensation
771paid for acting as a surrogate. 38 of 42
772 (e) Except in a case involving fraud, neither a genetic surrogate nor their spouse or
773former spouse, if any, shall be liable to the intended parent or parents for punitive or liquidated
774damages, for terminating a genetic surrogacy agreement in compliance with this section.
775 Section 28M. (a) Upon the birth of a child conceived by assisted reproduction under a
776genetic surrogacy agreement validated pursuant to section 28K or 28N, each intended parent
777shall be a parent of the resulting child.
778 (b) Upon the birth of a child conceived by assisted reproduction under a genetic
779surrogacy agreement validated under section 28K or 28N, the intended parent or parents shall
780file a notice with the court that validated said agreement that a child has been born as a result of
781assisted reproduction under that agreement. Upon receiving such notice, the court shall
782immediately, or as soon as practicable, issue an order without notice and hearing:
783 (i) declaring that any intended parent or parents is a parent of a child conceived by
784assisted reproduction under the agreement and ordering that parental rights and duties vest
785exclusively in any intended parent;
786 (ii) declaring that the genetic surrogate and their spouse or former spouse, if any, are not
787parents of the child;
788 (iii) designating the contents of the birth certificate in accordance with chapter 46 and
789directing the department of public health to designate any intended parent as a parent of the
790child;
791 (iv) to protect the privacy of the child and the parties, declaring that the court record and
792related pleadings be impounded in accordance with section 28I; 39 of 42
793 (v) if necessary, ordering that the child be surrendered to the intended parent or parents;
794and
795 (vi) for other relief the court determines necessary and proper.
796 (c) Except as otherwise provided in subsection (d) or section 28O, if, due to a clinical or
797laboratory error, a child conceived by assisted reproduction under a genetic surrogacy agreement
798is not genetically related to an intended parent or a donor who donated to the intended parent or
799parents, each intended parent and not the genetic surrogate and their spouse or former spouse, if
800any, shall be a parent of the child.
801 (d) If a child born to a genetic surrogate is alleged not to have been conceived by assisted
802reproduction, the court may, upon finding sufficient evidence, order genetic testing to determine
803the genetic parentage of the child. If the child was not conceived by assisted reproduction and the
804second source of genetic material is the spouse of the genetic surrogate, then the surrogate and
805the spouse shall be found to be the parents of the child. If the second genetic source is a person
806other than the spouse of the surrogate, then parentage shall be determined as provided in sections
8071 to 27, inclusive; provided, however, that if the second genetic source is an intended parent, the
808court, in its sole discretion, shall determine parentage under sections 1 to 27, inclusive. Unless
809the genetic surrogacy agreement provides otherwise, the genetic surrogate shall not be entitled to
810any non-expense related compensation paid for acting as a surrogate if the child was not
811conceived by assisted reproduction.
812 (e) If an intended parent fails to file the notice required under subsection (b), the person
813acting as genetic surrogate may file with the court, not later than 60 days after the birth of a child
814conceived by assisted reproduction under the genetic surrogacy agreement, notice that the child 40 of 42
815has been born to the genetic surrogate. On proof of a court order issued under sections 28K or
81628N validating the agreement, the court shall order that each intended parent is a parent of the
817child.
818 Section 28N. (a) A genetic surrogacy agreement, whether or not in writing, that is not
819validated under section 28K shall be enforceable only to the extent provided in this section and
820section 28P.
821 (b) If all parties agree, a court may validate a genetic surrogacy agreement after assisted
822reproduction has occurred and before the birth of a child conceived by assisted reproduction
823under the agreement if the court finds by a preponderance of the evidence that: (i) sections 28A,
82428B or 28C are satisfied; and (ii) all parties entered into the agreement voluntarily and
825understand its terms.
826 (c) If a child conceived by assisted reproduction under a genetic surrogacy agreement that
827is not validated under section 28K or subsection (b) is born, the genetic surrogate shall not
828automatically be a parent and the court shall adjudicate parentage of the child based on the best
829interest of the child, taking into account the factors in subsection (a) of section 26 and the intent
830of the parties at the time of the execution of the agreement.
831 (d) The parties to a genetic surrogacy agreement shall have standing to commence a
832proceeding to adjudicate parentage under this section.
833 Section 28O. (a) Except as otherwise provided in sections 28M or 28N, upon the birth of
834a child conceived by assisted reproduction under a genetic surrogacy agreement, each intended
835parent shall be, by operation of law, a parent of the child, notwithstanding the death of an 41 of 42
836intended parent during the period between the transfer of a gamete or embryo and the birth of the
837child.
838 (b) Except as otherwise provided in sections 28M or 28N, an intended parent shall not be
839a parent of a child conceived by assisted reproduction under a genetic surrogacy agreement if the
840intended parent dies before the transfer of a gamete or embryo unless: (i) the agreement provides
841otherwise; and (ii) the transfer of the gamete or embryo occurs not later than 36 months after the
842death of the intended parent, or birth of the child occurs not later than 45 months after the death
843of the intended parent.
844 Section 28P. (a) Subject to subsection (d) of section 28L, if a genetic surrogacy
845agreement is breached by a genetic surrogate or 1 or more intended parents, the non-breaching
846party is entitled to the remedies available at law or in equity.
847 (b) Specific performance shall not be an available remedy for breach by a genetic
848surrogate of a requirement of a validated or nonvalidated genetic surrogacy agreement that the
849genetic surrogate become pregnant, terminate or not terminate a pregnancy or submit to medical
850procedures.
851 (c) Except as otherwise provided in subsection (b), specific performance shall be a
852remedy available for: (i) breach of a validated genetic surrogacy agreement by a genetic
853surrogate of a requirement which prevents an intended parent from exercising, immediately upon
854birth of the child, the full rights of parentage; or (ii) breach by an intended parent which prevents
855the intended parent’s acceptance, immediately upon birth of the child, of the duties of parentage.
856 SECTION 66. The trial court of the commonwealth, in accordance with section 24 of
857chapter 209C of the General Laws, shall update existing forms and promulgate new forms as 42 of 42
858necessary for use under said chapter 209C, which shall be in such form and language to permit a
859person to prepare and file such forms pro se.
860 SECTION 67. This act shall take effect on January 1, 2025.