Massachusetts 2023-2024 Regular Session

Massachusetts Senate Bill S947 Compare Versions

Only one version of the bill is available at this time.

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1	1	1 of 1
2	2	SENATE DOCKET, NO. 1088 FILED ON: 1/18/2023
3	3	SENATE . . . . . . . . . . . . . . No. 947
4	4	The Commonwealth of Massachusetts
5	5	_________________
6	6	PRESENTED BY:
7	7	Julian Cyr
8	8	_________________
9	9	To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
10	10	Court assembled:
11	11	The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:
12	12	An Act to ensure legal parentage equality.
13	13	_______________
14	14	PETITION OF:
15	15	NAME:DISTRICT/ADDRESS :Julian CyrCape and IslandsBruce E. TarrFirst Essex and Middlesex1/19/2023Adam Scanlon14th Bristol1/25/2023Robyn K. KennedyFirst Worcester2/7/2023Joanne M. ComerfordHampshire, Franklin and Worcester2/7/2023Susannah M. Whipps2nd Franklin2/7/2023Jack Patrick Lewis7th Middlesex2/7/2023Jason M. LewisFifth Middlesex2/7/2023Thomas M. Stanley9th Middlesex2/7/2023Patrick M. O'ConnorFirst Plymouth and Norfolk2/22/2023Rebecca L. RauschNorfolk, Worcester and Middlesex2/22/2023Paul R. FeeneyBristol and Norfolk3/7/2023 1 of 32
16	16	SENATE DOCKET, NO. 1088 FILED ON: 1/18/2023
17	17	SENATE . . . . . . . . . . . . . . No. 947
18	18	By Mr. Cyr, a petition (accompanied by bill, Senate, No. 947) of Julian Cyr, Bruce E. Tarr,
19	19	Adam Scanlon, Robyn K. Kennedy and other members of the General Court for legislation to
20	20	ensure legal parentage equality. The Judiciary.
21	21	The Commonwealth of Massachusetts
22	22	_______________
23	23	In the One Hundred and Ninety-Third General Court
24	24	(2023-2024)
25	25	_______________
26	26	An Act to ensure legal parentage equality.
27	27	Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority
28	28	of the same, as follows:
29	29	1 SECTION 1. The title of chapter 209C of the General Laws is hereby amended by
30	30	2striking out the words “CHILDREN BORN OUT OF WEDLOCK” in that title and inserting in
31	31	3place thereof the following words:-- “NONMARITAL CHILDREN AND PARENTAGE OF
32	32	4CHILDREN”.
33	33	5 SECTION 2. Chapter 209C of the General Laws is hereby amended by inserting after
34	34	6section 1 the following section 1A:- (a) It is the public policy of the Commonwealth that every
35	35	7child has the same rights and protections under law as any other child without regard to the
36	36	8marital status, gender, gender identity, or sexual orientation of the parent or parents or the
37	37	9circumstances of the birth of the child, including whether the child was born as a result of
38	38	10assisted reproduction or surrogacy. (b) a parent-child relationship is established between a person
39	39	11and a child if (i) Birth: the person gives birth to the child, except as otherwise provided in
40	40	12sections 28A-28Q; (ii) Presumption: there is a presumption of parentage under section 6, unless 2 of 32
41	41	13the presumption is overcome in a judicial proceeding or a valid denial of parentage is made; (iii)
42	42	14Adjudication: the individual is adjudicated a parent of the child by a court with jurisdiction; (iv)
43	43	15Adoption: the individual adopts the child pursuant to chapter 210; (v) Acknowledgment: the
44	44	16individual acknowledges parentage of the child under this chapter unless the acknowledgment is
45	45	17rescinded or successfully challenged; (vi) De Facto Parentage: the individual is adjudicated a de
46	46	18facto parent of the child under section 25; (vii) Assisted reproduction: the individual’s parentage
47	47	19of the child is established under section 27; (viii) Surrogacy: the individual’s parentage of the
48	48	20child is established under sections 28A-28Q. (c) For the purpose of this chapter, the term “child
49	49	21born out of wedlock” includes the term nonmarital child; the term “man” or “father” includes a
50	50	22parent of any gender; the term “woman” or “mother” includes the term “parent who gave birth;
51	51	23the term “putative father” includes the term “alleged genetic parent” and does not include a
52	52	24presumed parent, an individual whose parental rights have been terminated or declared not to
53	53	25exist or a donor” any reference to “paternity” includes the term “parentage;” any reference to
54	54	26“nonpaternity” includes the term “nonparentage;” any reference to “voluntary acknowledgement
55	55	27of paternity” includes the term “voluntary acknowledgment of parentage;” and any reference to
56	56	28“husband” or “wife” includes the term “spouse.”
57	57	29 SECTION 3. Section 5 of chapter 209C is hereby amended in line 50 by inserting after
58	58	30the word “chapter” the following sentence:- Voluntary acknowledgments of parentage may also
59	59	31be executed pursuant to this chapter by the person who gave birth and a person who is either a
60	60	32presumed parent pursuant to section 6 or an intended parent pursuant to section 27.
61	61	33 SECTION 4. Section 6 of chapter 209C is hereby amended in line 39 by adding the
62	62	34following subsection:- 3 of 32
63	63	35 (d) A presumption of parentage under this section may be overcome, and competing
64	64	36claims to parentage may be resolved, only by a valid denial of parentage under section 11 of this
65	65	37chapter or as follows:
66	66	38 (1) A presumption of parentage cannot be overcome after the child attains 2 years of age
67	67	39unless the court determines: (i) the presumed parent is not a genetic parent, never resided with
68	68	40the child, and never held out the child as the presumed parent’s child; or (ii) the child has more
69	69	41than 1 presumed parent.
70	70	42 (2) A proceeding to challenge a presumption by an alleged genetic parent who is not a
71	71	43presumed parent may be permitted by a court only if the alleged genetic parent proves, by clear
72	72	44and convincing evidence, that the alleged genetic parent has a substantial parent-child
73	73	45relationship with the child. If the court permits the proceeding, the court shall adjudicate
74	74	46parentage under section 26.
75	75	47 (3) The following rules apply in a proceeding to adjudicate a presumed parent’s
76	76	48parentage of a child if the individual who gave birth to the child is the only other individual with
77	77	49a claim to parentage of the child: (i) If no party to the proceeding challenges the presumed
78	78	50parent’s parentage of the child, the court shall adjudicate the presumed parent to be a parent of
79	79	51the child; (ii) If the presumed parent is identified as a genetic parent of the child and that
80	80	52identification is not successfully challenged, the court shall adjudicate the presumed parent to be
81	81	53a parent of the child; (iii) If the presumed parent is not identified as a genetic parent of the child
82	82	54and the presumed parent or the individual who gave birth to the child challenges the presumed
83	83	55parent’s parentage of the child, the court shall adjudicate the parentage of the child in the best
84	84	56interest of the child based on the factors of section 26. 4 of 32
85	85	57 (4) Subject to other limitations in this part, if in a proceeding to adjudicate a presumed
86	86	58parent’s parentage of a child, another individual in addition to the individual who gave birth to
87	87	59the child asserts a claim to parentage of the child, the court shall adjudicate parentage under
88	88	60section 26.
89	89	61 SECTION 5. Section 11 of chapter 209C is hereby amended in line 2 by inserting after
90	90	62the word “father” the following:- presumed parent or intended parent pursuant to section 27.
91	91	63 SECTION 6. Section 11 of chapter 209C is hereby amended by striking out, in line 3, the
92	92	64words “mother of the child” and inserting in place thereof the following words:- individual who
93	93	65gave birth to the child.
94	94	66 SECTION 7. Section 11 of chapter 209C is hereby amended in lines 21-22 by striking
95	95	67“such putative father and mother and shall have the same force and effect as a judgment of
96	96	68paternity” and inserting the following:- “both parents and shall have the same force and effect as
97	97	69a judgment of parentage”.
98	98	70 SECTION 8. Section 11 of chapter 209C is hereby amended in line 48 by striking “shall”
99	99	71and inserting the following:- may.
100	100	72 SECTION 9. Section 11 of chapter 209C is hereby amended in line 83 by inserting after
101	101	73the word “executed” the following sentence:-A voluntary acknowledgement of parentage that
102	102	74complies with this section and section 5 and is filed with the registrar of vital records and
103	103	75statistics or the court is equivalent to an adjudication of parentage of the child and confers on the
104	104	76acknowledged parent all rights and duties of a parent. The court shall give full faith and credit to
105	105	77a voluntary acknowledgment of parentage that is effective in another state if the
106	106	78acknowledgment was in a signed record and otherwise complies with the laws of the other state. 5 of 32
107	107	79 SECTION 10. Chapter 209C of the General Laws is hereby amended by inserting after
108	108	80section 24 the following section 25:
109	109	81 Section 25. De Facto Parentage
110	110	82 (a) This section shall apply to nonmarital and marital children. A proceeding to establish
111	111	83parentage of a child under this section may be commenced only by an individual who:
112	112	84 (i) is alive when the proceeding is commenced; and
113	113	85 (ii) claims to be a de facto parent of the child.
114	114	86 (b) An individual who claims to be a de facto parent of a child shall commence a
115	115	87proceeding to establish parentage of a child under this section:
116	116	88 (i) before the child attains 18 years of age; and
117	117	89 (ii) while the child is alive.
118	118	90 (c) The following rules govern standing of an individual who claims to be a de facto
119	119	91parent of a child to maintain a proceeding under this section:
120	120	92 (i) The individual shall file an initial verified pleading alleging specific facts that support
121	121	93the claim to parentage of the child asserted under this section. The verified pleading must be
122	122	94served on all parents and legal guardians of the child and any other party to the proceeding.
123	123	95 (ii) An adverse party, parent, or legal guardian may file a pleading in response to the
124	124	96pleading filed under paragraph (i). A responsive pleading must be verified and served on parties
125	125	97to the proceeding. 6 of 32
126	126	98 (iii) The court shall determine, based on the pleadings under subsections c(i) and c(ii) ,
127	127	99whether the individual has alleged facts sufficient to satisfy by a preponderance of the evidence
128	128	100each of the requirements of paragraphs (i) through (vii) of subsection (d). Upon request made by
129	129	101a party entitled to notice, the court may hold a hearing on the issue of standing. Whether the
130	130	102hearing is an evidentiary hearing is in the discretion of the court. The court may enter an interim
131	131	103order concerning contact between the child and an individual with standing seeking adjudication
132	132	104under this section as a de facto parent of the child.
133	133	105 (d) In a proceeding to adjudicate parentage of an individual who claims to be a de facto
134	134	106parent of the child, if there is only 1 other individual who is a parent or has a claim to parentage
135	135	107of the child, the court shall adjudicate the individual who claims to be a de facto parent to be a
136	136	108parent of the child if the individual demonstrates by clear-and convincing evidence that:
137	137	109 (i) the individual resided with the child as a regular member of the child’s household for a
138	138	110significant period of time based on the age of the child;
139	139	111 (ii) the individual engaged in consistent caretaking of the child which may include
140	140	112regularly taking responsibility for the child’s needs such as care, guidance, education and health,
141	141	113and making day-to-day decisions regarding the child individually or cooperatively with another
142	142	114parent;
143	143	115 (iii) the individual undertook full and permanent responsibilities of a parent of the child
144	144	116without expectation or payment of financial compensation. If an individual undertook the
145	145	117responsibilities of a parent of the child due to a parent of that child being deployed in the
146	146	118military, there shall be a presumption that such arrangements were intended to be temporary for
147	147	119the duration of the parent’s military deployment; 7 of 32
148	148	120 (iv) the individual held out the child as the individual’s child;
149	149	121 (v) the individual established a bonded and dependent relationship with the child which is
150	150	122parental in nature;
151	151	123 (vi) a parent of the child fostered or supported the bonded and dependent relationship
152	152	124required under paragraph (v). Consent to guardianship, execution of a caregiver affidavit,
153	153	125execution of a Military Family Care Plan, or other caretaking agreement by a parent serving in
154	154	126the military shall not be considered as evidence that a parent fostered or supported the bonded
155	155	127and dependent relationship required under (v); and
156	156	128 (vii) continuing the relationship between the individual and the child is in the best interest
157	157	129of the child. In considering this factor, the court shall consider evidence of past or present abuse
158	158	130by the individual toward a parent or the child as a factor contrary to the best interests of the child.
159	159	131For the purpose of this section, “abuse” shall have the same meaning as provided in section 31 of
160	160	132chapter 208 and section 10(e) of this chapter.
161	161	133 (e) A parent of the child may use evidence of duress, coercion, or threat of harm to
162	162	134 contest an allegation that the parent fostered or supported a bonded and dependent
163	163	135relationship as
164	164	136 provided in subsection (d)(vi) of this section or that continuing the relationship between
165	165	137the individual and the child is in the best interests of the child as provided in subsection d(vii) of
166	166	138this section. Such evidence may include, but not be limited to, whether, within the prior ten
167	167	139years, the individual seeking to be adjudicated a de facto parent (1) has been convicted of a crime
168	168	140involving violence against a parent of the child or the child including but not limited to rape, 8 of 32
169	169	141assault with intent to commit rape, indecent assault and battery, assault or assault and battery on
170	170	142a family or household member; (2) was the subject of a final abuse prevention order pursuant to
171	171	143Chapter 209A or section 34B or 34C of Chapter 208 because the individual was found to have
172	172	144committed abuse against the child or a parent of the child; (3) was substantiated for abuse against
173	173	145the child by the Department of Children and Families; or (4) there exists other credible evidence
174	174	146of abuse by the individual against a parent of the child or the child.
175	175	147 (f) Subject to other limitations in this section, if in a proceeding to adjudicate parentage
176	176	148of an individual who claims to be a de facto parent of the child, there is more than 1 other
177	177	149individual who is a parent or has a claim to parentage of the child and the court determines that
178	178	150the requirements of subsection (d) are satisfied, the court shall adjudicate parentage under section
179	179	15126 of this chapter.
180	180	152 (g) The adjudication of an individual as a de facto parent under this section does not
181	181	153disestablish the parentage of any other parent.
182	182	154 SECTION 11. Chapter 209C of the General Laws is hereby amended by inserting the
183	183	155following section 26:
184	184	156 Section 26. Competing Claims of Parentage
185	185	157 (a) In a proceeding to adjudicate competing claims of, or challenges under this chapter to,
186	186	158parentage of a child by 2 or more individuals, the court shall adjudicate parentage in the best
187	187	159interest of the child, based on:
188	188	160 (i) the age of the child; 9 of 32
189	189	161 (ii) the length of time during which each individual assumed the role of parent of the
190	190	162child;
191	191	163 (iii) the nature of the relationship between the child and each individual;
192	192	164 (iv) the harm to the child if the relationship between the child and each individual is not
193	193	165recognized;
194	194	166 (v) the basis for each individual’s claim to parentage of the child; and
195	195	167 (vi) other equitable factors arising from the disruption of the relationship between the
196	196	168child and each individual or the likelihood of other harm to the child.
197	197	169 (b) If an individual challenges parentage based on the results of genetic testing, in
198	198	170addition to the factors listed in subsection (a), the court shall consider:
199	199	171 (i) the facts surrounding the discovery that the individual might not be a genetic parent of
200	200	172the child; and
201	201	173 (ii) the length of time between the time that the individual was placed on notice that the
202	202	174individual might not be a genetic parent and the commencement of the proceeding.
203	203	175 (c) The court may adjudicate a child to have more than 2 parents if the court finds that it
204	204	176is in the best interests of the child to do so. A finding of best interests of the child under this
205	205	177subsection does not require a finding of unfitness of any parent or person seeking an adjudication
206	206	178of parentage.
207	207	179 SECTION 12. Chapter 209C of the General Laws is hereby amended by inserting the
208	208	180following section 27: 10 of 32
209	209	181 Section 27. Parentage by Assisted Reproduction
210	210	182 This section shall apply to nonmarital and marital children. This section shall not apply
211	211	183to the birth of a child conceived by sexual intercourse or assisted reproduction by surrogacy
212	212	184agreement under sections 28A-28Q.
213	213	185 Venue for a proceeding to adjudicate parentage under this section is in the county of this
214	214	186state in which: (i) the child resides or is or will be born; (ii) any parent or intended parent resides;
215	215	187or (iii) a proceeding has been commenced for administration of the estate of an individual who is
216	216	188or may be a parent under this chapter.
217	217	189 The following terms shall have the following meanings:
218	218	190 “Assisted reproduction”, a method of causing pregnancy other than sexual intercourse
219	219	191and includes, but is not limited to, artificial insemination as well as intrauterine, intracervical, or
220	220	192vaginal insemination; donation of gametes; donation of embryos; in vitro fertilization and
221	221	193transfer of embryos; and intracytoplasmic sperm injection.
222	222	194 “Donor”, an individual who provides a gamete or embryo intended for assisted
223	223	195reproduction or gestation, whether or not for consideration. This term does not include a person
224	224	196who consents to assisted reproduction with the intent to be a parent of the resulting child.
225	225	197 “Intended parent”, an individual, whether married or unmarried, who manifests an intent
226	226	198to be legally bound as a parent of a child resulting from assisted reproduction.
227	227	199 A donor is not a parent of a child conceived through assisted reproduction by virtue of the
228	228	200donor’s genetic connection. A donor may not establish the donor's parentage by signing an
229	229	201acknowledgment of parentage pursuant to this chapter. A donor shall not be entitled to notice. 11 of 32
230	230	202 An individual who consents to assisted reproduction under subsection (f) with the intent
231	231	203to be a parent of a child conceived by the assisted reproduction is a parent of the child.
232	232	204 Consent to assisted reproduction described in subsection (e) may be established either by
233	233	205a record signed by the individual giving birth to a child conceived by assisted reproduction and
234	234	206by an individual who intends to be a parent of the child before, on, or after the birth of the child
235	235	207or if a court finds by a preponderance of the evidence that (i) prior to conception or birth of the
236	236	208child, the parties agreed that they would be parents of the child; or (ii) the individual who seeks
237	237	209to be a parent of the child voluntarily participated in and consented to the assisted reproduction
238	238	210that resulted in the conception of the child.
239	239	211 Except as otherwise provided herein, an individual who, at the time of a child’s birth, is
240	240	212the spouse of the person who gave birth to the child by assisted reproduction may not challenge
241	241	213the spouse’s parentage of the child unless not later than 2 years after the birth of the child, the
242	242	214spouse commences a proceeding to adjudicate their own parentage of the child, and the court
243	243	215finds the spouse did not consent to the assisted reproduction, before, on, or after birth of the
244	244	216child, or withdrew consent under subsection i. A proceeding by a spouse to challenge their own
245	245	217parentage of a child born by assisted reproduction may be commenced at any time if the court
246	246	218determines that the spouse neither provided a gamete for, nor consented to, the assisted
247	247	219reproduction; the spouse and the person who gave birth to the child have not cohabited since the
248	248	220probable time of assisted reproduction; and the spouse never openly held out the child as their
249	249	221child. This subsection applies to a spouse’s dispute of parentage even if the spouse’s marriage is
250	250	222declared invalid after assisted reproduction occurs. The person giving birth shall not challenge a
251	251	223spouse’s parentage under this section. 12 of 32
252	252	224 A married individual who has commenced an action for divorce may, after at least 60
253	253	225days has elapsed since service of the complaint, proceed with assisted reproduction pursuant to
254	254	226this section and the spouse shall not be a parent of any child born as a result of the assisted
255	255	227reproduction unless the spouse consents in a record to be a parent of a child born as a result of
256	256	228assisted reproduction after commencement of a divorce action. A married individual proceeding
257	257	229with assisted reproduction pursuant to this section shall not utilize gametes of the spouse unless
258	258	230the spouse consents in a record to the use of the spouse’s gametes for assisted reproduction by
259	259	231the married person after commencement of a divorce action.
260	260	232 An individual who consents under subsection e to assisted reproduction may withdraw
261	261	233consent any time before a transfer or implantation of gametes or embryos that results in a
262	262	234pregnancy, by giving notice in a record of the withdrawal of consent to the person who agreed to
263	263	235give birth to a child conceived by assisted reproduction and to any clinic or health-care provider
264	264	236who may be facilitating the assisted reproduction. Failure to give notice to a clinic or health-care
265	265	237provider does not affect a determination of parentage under this section. An individual who
266	266	238withdraws consent under this subsection is not a parent of the child under this subsection.
267	267	239 (i)If an individual who intends to be a parent of a child conceived by assisted
268	268	240reproduction dies during the period between the transfer or implantation of a gamete or embryo
269	269	241and the birth of the child, the individual’s death does not preclude the establishment of the
270	270	242individual’s parentage of the child if the individual otherwise would be a parent of the child
271	271	243under this chapter. (ii) If an individual who consented in a record to assisted reproduction by a
272	272	244person who agreed to give birth to a child dies before a transfer or implantation of gametes or
273	273	245embryos, the deceased individual is a parent of a child conceived by the assisted reproduction
274	274	246only if either the individual consented in a record that if assisted reproduction were to occur after 13 of 32
275	275	247the death of the individual, the individual would be a parent of the child; or the individual’s
276	276	248intent to be a parent of a child conceived by assisted reproduction after the individual’s death is
277	277	249established by a preponderance of the evidence; and either the embryo is in utero not later than
278	278	25036 months after the individual’s death; or the child is born not later than 45 months after the
279	279	251individual’s death.
280	280	252 If due to a laboratory error the child is not genetically related to either the intended parent
281	281	253or parents or any donor who donated to the intended parent or parents, the intended parent or
282	282	254parents are the parents of the child unless otherwise determined by the court.
283	283	255 Genetic testing, including genetic marker testing pursuant to section 11 of chapter 209C,
284	284	256shall not be used (i) to challenge the parentage of an individual who is a parent under this
285	285	257section; or (ii) to establish the parentage of an individual who is a donor.
286	286	258 (i) An individual giving birth or an individual who is or claims to be a parent under this
287	287	259section may commence a proceeding prior to or after the birth of a child to obtain a judgment (a)
288	288	260Declaring that the intended parent or parents are the parent or parents of the resulting child
289	289	261immediately upon birth of the child and ordering that parental rights and responsibilities vest
290	290	262exclusively in the intended parent or parents immediately upon birth of the child; and (b)
291	291	263Designating the contents of the birth certificate and directing the department of public health to
292	292	264designate the intended parent or parents as the parent or parents of the resulting child. (ii) A
293	293	265judgment issued before the birth of the resulting child does not take effect unless and until the
294	294	266birth of the resulting child. Nothing in this subsection shall be construed to limit the court’s
295	295	267authority to issue other orders under any other provision of the general laws. (iii) Neither the
296	296	268state, the department of public health nor the hospital where the child is or expected to be born 14 of 32
297	297	269shall be a necessary party to a proceeding under this section. (iv) The burden of proof in
298	298	270proceedings under this section shall be by a preponderance of the evidence.
299	299	271 On request of a party, the court may close a proceeding under this article to the general
300	300	272public. All complaints, pleadings, papers or documents filed pursuant to this section, including
301	301	273docket entries, shall not be available for inspection, unless a judge of probate and family court of
302	302	274the county where such records are kept, for good cause shown, shall otherwise order or unless
303	303	275requested by the child or the parties. All such complaints, pleadings, papers or documents shall
304	304	276be segregated.
305	305	277 In a proceeding under this section, the court shall issue a final judgment adjudicating
306	306	278whether a person alleged or claiming to be a parent is the parent of a child. On request of a party
307	307	279and consistent with law of this state other than this section, the court in a proceeding under this
308	308	280section may order the name of the child changed. If the final judgment is at variance with the
309	309	281child’s birth certificate, the court shall order the department of public health to issue an amended
310	310	282birth certificate.
311	311	283 SECTION 13. Chapter 209C of the General Laws is hereby amended by inserting after
312	312	284section 27 the following sections:
313	313	285 Section 28A. Parentage by Consent to Surrogacy Agreement
314	314	286 (a)This section shall apply to nonmarital and marital children. This section shall not
315	315	287apply to the birth of a child conceived by sexual intercourse.
316	316	288 (b) Venue for proceedings under sections 28A through 28Q is in the county of this
317	317	289state in which: (i) the child resides or is born or expected to be born; (ii) a parent or intended 15 of 32
318	318	290parent resides; (iii) an individual acting as a surrogate resides; or (iv) a proceeding has been
319	319	291commenced for administration of the estate of an individual who is or may be a parent under this
320	320	292chapter.
321	321	293 (c)The following terms shall have the following meanings:
322	322	294 (i)“Assisted reproduction”, a method of causing pregnancy other than sexual
323	323	295intercourse and includes, but is not limited to, artificial insemination as well as intrauterine,
324	324	296intracervical, or vaginal insemination; donation of gametes; donation of embryos; in vitro
325	325	297fertilization and transfer of embryos; and intracytoplasmic sperm injection.
326	326	298 (ii)“Intended parent”, an individual, whether married or unmarried, who manifests an
327	327	299intent to be legally bound as a parent of a child resulting from assisted reproduction.
328	328	300 (iii)“Genetic surrogate”, an individual who is at least 21 years of age, is not an
329	329	301intended parent and who agrees to become pregnant through assisted reproduction using the
330	330	302individual’s own gamete, under a genetic surrogacy agreement as provided in this chapter.
331	331	303 (iv)“Gestational surrogate”, an individual who is at least 21 years of age, is not an
332	332	304intended parent and who agrees to become pregnant through assisted reproduction using gametes
333	333	305that are not the individual’s own, under a gestational surrogacy agreement as provided in this
334	334	306chapter.
335	335	307 (v)“Surrogacy agreement”, an agreement between one or more intended parents and an
336	336	308individual who is not an intended parent in which the person agrees to become pregnant through
337	337	309assisted reproduction and which provides that each intended parent is a parent of a child 16 of 32
338	338	310conceived under the agreement. Unless otherwise specified, surrogacy agreement refers to both a
339	339	311gestational surrogacy agreement and a genetic surrogacy agreement.
340	340	312 Section 28B. Eligibility
341	341	313 To execute an agreement to act as a gestational or genetic surrogate, an individual shall:
342	342	314(i) be at least 21 years of age; (ii) previously have given birth to at least one child; (iii) complete
343	343	315a medical evaluation related to the surrogacy arrangement by a licensed medical doctor; (iv)
344	344	316complete a mental health consultation by a licensed mental health professional; and (v) have
345	345	317independent legal representation of the individual’s choice throughout the surrogacy agreement
346	346	318regarding the terms of the surrogacy agreement and the potential legal consequences of the
347	347	319agreement and that is paid for by the intended parent or parents.
348	348	320 To execute a surrogacy agreement as an intended parent, whether or not genetically
349	349	321related to the child, an individual shall: (i) be at least 21 years of age; (ii) complete a mental
350	350	322health consultation by a licensed mental health professional; and (iii) have independent legal
351	351	323representation of the intended parent’s choice throughout the surrogacy agreement regarding the
352	352	324terms of the surrogacy agreement and the potential legal consequences of the agreement.
353	353	325 Section 28C. Process Requirements
354	354	326 A surrogacy agreement shall be executed in compliance with the following rules:
355	355	327 (a)At least 1 party shall be a resident of the Commonwealth or, if no party is a
356	356	328resident of the Commonwealth, at least 1 medical evaluation or procedure or mental health
357	357	329consultation under the agreement shall occur in this state, or the birth is anticipated to or does
358	358	330occur in this state. 17 of 32
359	359	331 (b)An individual acting as a surrogate and each intended parent shall meet the
360	360	332requirements of section 28B.
361	361	333 (c)Each intended parent, the individual acting as surrogate, and spouse, if any, of the
362	362	334individual acting as surrogate shall be parties to the agreement.
363	363	335 (d)The agreement shall be in a record signed by each party listed in paragraph (c).
364	364	336 (e)The individual acting as a surrogate and each intended parent shall receive a copy
365	365	337of the agreement.
366	366	338 (f)The signature of each party to the agreement shall be attested by a notary or
367	367	339witnessed. (g) The individual acting as surrogate and, if married, the spouse of the individual
368	368	340acting as surrogate and the intended parent or parents shall have independent legal representation
369	369	341throughout the surrogacy agreement regarding the terms of the surrogacy agreement and the
370	370	342potential legal consequences of the agreement paid for by the intended parent or parents, and
371	371	343each counsel shall be identified in the surrogacy agreement. A single attorney for the individual
372	372	344acting as surrogate and the individual’s spouse, if married, and a single attorney for the intended
373	373	345parents is sufficient to meet this requirement, provided the representation otherwise conforms to
374	374	346the Rules of Professional Conduct.
375	375	347 (h)The intended parent or parents shall pay for independent legal representation for
376	376	348the individual acting as surrogate and the individual’s spouse, if any.
377	377	349 (i)The agreement shall be executed before a medical procedure occurs related to
378	378	350attempting to achieve a pregnancy in the individual acting as surrogate, other than the medical
379	379	351evaluation and mental health consultation required by section 28B. 18 of 32
380	380	352 Section 28D. Agreement Content Requirements
381	381	353 A surrogacy agreement shall comply with the following requirements:
382	382	354 (a)An individual acting as surrogate agrees to attempt to become pregnant by means
383	383	355of assisted reproduction.
384	384	356 (b)Except as otherwise provided in sections 28J, 28N, and 28O, the individual acting
385	385	357as surrogate and the surrogate’s spouse or former spouse, if any, have no claim to parentage of a
386	386	358child conceived by assisted reproduction under the surrogacy agreement.
387	387	359 (c)The surrogate’s spouse, if any, shall acknowledge and agree to comply with the
388	388	360obligations imposed on the individual acting as surrogate by the surrogacy agreement.
389	389	361 (d)Except as otherwise provided in sections 28H, 28K, 28N, and 28O, the intended
390	390	362parent or, if there are 2 intended parents, each one jointly and severally, immediately on birth of
391	391	363the child shall be the exclusive parent or parents of the child, regardless of the number of
392	392	364children born or gender or condition of each child.
393	393	365 (e)Except as otherwise provided in sections 28H, 28K, 28N, and 28O, the intended
394	394	366parent or, if there are 2 intended parents, each parent jointly and severally, immediately on birth
395	395	367of the child shall assume responsibility for the financial support of the child, regardless of the
396	396	368number of children born or the gender or condition of each child.
397	397	369 (f)The intended parent or parents are liable, and the surrogacy agreement shall
398	398	370include information providing that the intended parent or parents shall be responsible for paying,
399	399	371for the surrogacy-related expenses of the individual acting as surrogate, including expenses for
400	400	372health care provided for assisted reproduction, prenatal care, labor and delivery and for the 19 of 32
401	401	373medical expenses of the resulting child that are not paid by insurance. This subsection shall not
402	402	374be construed to supplant any health insurance coverage that is otherwise available to the
403	403	375individual acting as surrogate or an intended parent for the coverage of health care costs. This
404	404	376subsection shall not change the health insurance coverage of the individual acting as surrogate or
405	405	377the responsibility of the insurance company to pay benefits under a policy that covers an
406	406	378individual acting as surrogate.
407	407	379 (g)The surrogacy agreement shall not infringe on the rights of the individual acting
408	408	380as surrogate to make all health and welfare decisions regarding the person, the person's body and
409	409	381the person's pregnancy throughout the duration of the surrogacy arrangement, including during
410	410	382attempts to become pregnant, pregnancy, delivery and post-partum. The agreement shall not
411	411	383infringe upon the right of the individual acting as surrogate to autonomy in medical decision
412	412	384making by, including, but not limited to, requiring the individual acting as surrogate to undergo a
413	413	385scheduled, nonmedically indicated caesarean section or to undergo multiple embryo transfer.
414	414	386Except as otherwise provided by law, any written or oral agreement purporting to waive or limit
415	415	387the rights described in this subsection are void as against public policy.
416	416	388 (h) The surrogacy agreement shall include information about each party’s right under
417	417	389this article to terminate the surrogacy agreement.
418	418	390 (i)A right created under a surrogacy agreement is not assignable and there is no
419	419	391third- party beneficiary of the agreement other than the child.
420	420	392 (j)A surrogacy agreement may provide for (i) payment of consideration and
421	421	393reasonable expenses and (ii) reimbursement of specific expenses if the agreement is terminated
422	422	394under this chapter. 20 of 32
423	423	395 Section 28E. Effect of subsequent change of marital status on agreement
424	424	396 Unless a surrogacy agreement expressly provides otherwise:
425	425	397 (a)The marriage of an individual acting as surrogate after the surrogacy agreement is
426	426	398signed by all parties shall not affect the validity of the agreement, the spouse’s consent to the
427	427	399surrogacy agreement is not required, and the surrogate’s spouse is not a presumed parent of a
428	428	400child conceived by assisted reproduction under the surrogacy agreement.
429	429	401 (b) The divorce or annulment of the individual acting as surrogate after the surrogacy
430	430	402agreement is signed by all parties shall not affect the validity of the surrogacy agreement.
431	431	403 (c) The marriage of an intended parent after the agreement is signed by all parties
432	432	404shall not affect the validity of a surrogacy agreement, the consent of the spouse of the intended
433	433	405parent is not required, and the spouse of the intended parent is not, based on the surrogacy
434	434	406agreement, a parent of a child conceived by assisted reproduction under the surrogacy
435	435	407agreement.
436	436	408 (d)The divorce or annulment of an intended parent after the surrogacy agreement is
437	437	409signed by all parties shall not affect the validity of the surrogacy agreement and the intended
438	438	410parents are the parents of the child.
439	439	411 Section 28F. Exclusive Continuing Jurisdiction
440	440	412 During the period after the execution of a surrogacy agreement until the occurrence of the
441	441	413earlier of the date of termination of a surrogacy agreement pursuant to the agreement terms or 90
442	442	414days after the birth of a child conceived by assisted reproduction under the surrogacy agreement,
443	443	415a court of this state conducting a proceeding under this chapter has exclusive, continuing 21 of 32
444	444	416jurisdiction over all matters arising out of the agreement. This section does not give the court
445	445	417jurisdiction over a child custody or child support proceeding if jurisdiction is not otherwise
446	446	418authorized by the law of this state other than this chapter.
447	447	419 Section 28G. Termination of Gestational Surrogacy Agreement
448	448	420 (a) A party to a gestational surrogacy agreement may terminate the agreement, at any
449	449	421time before an embryo transfer, by giving notice of termination in a record to all other parties. If
450	450	422an embryo transfer does not result in a pregnancy, a party may terminate the agreement at any
451	451	423time before a subsequent embryo transfer.
452	452	424 (b) Unless a gestational surrogacy agreement provides otherwise, on termination of the
453	453	425agreement under subsection (a), the parties are released from the agreement, except that each
454	454	426intended parent remains responsible for expenses that are reimbursable under the agreement and
455	455	427incurred by the individual acting as gestational surrogate through the date of termination of the
456	456	428agreement.
457	457	429 (c) Except in a case involving fraud, neither an individual acting as gestational surrogate
458	458	430nor the surrogate’s spouse or former spouse of the person acting as surrogate, if any, is liable to
459	459	431the intended parent or parents for a penalty or liquidated damages, for terminating a gestational
460	460	432surrogacy agreement under this section.
461	461	433 Section 28H. Parentage under gestational surrogacy agreement
462	462	434 (a) Except as otherwise provided in subsection (c) or section 28I(b) or 28K, on birth of a
463	463	435child conceived by assisted reproduction under a gestational surrogacy agreement, each intended 22 of 32
464	464	436parent is, by operation of law, a parent of the child. Parental rights shall vest exclusively in the
465	465	437intended parent or parents immediately upon birth of the resulting child.
466	466	438 (b) Except as otherwise provided in subsection (c) or section 28K, neither an individual
467	467	439acting as gestational surrogate nor the surrogate’s spouse or former spouse, if any, is a parent of
468	468	440the child.
469	469	441 (c) If a child is alleged to be a genetic child of the individual who agreed to be a
470	470	442gestational surrogate, the court shall, upon finding sufficient evidence, order genetic testing of
471	471	443the child. If the child is a genetic child of the individual who agreed to be a gestational surrogate,
472	472	444parentage shall be determined in accordance with sections 1 through 27 of this chapter.
473	473	445 (d) Except as otherwise provided in subsection (c) or subsection (b) of section 28I or
474	474	446section 28J, if, due to a clinical or laboratory error, a child conceived by assisted reproduction
475	475	447under a gestational surrogacy agreement is not genetically related to an intended parent or a
476	476	448donor who donated to the intended parent or parents, each intended parent, and not the individual
477	477	449acting as gestational surrogate and the surrogate’s spouse or former spouse, if any, is a parent of
478	478	450the child.
479	479	451 Section 28I. Parentage of deceased intended parent under gestational surrogacy
480	480	452agreement
481	481	453 (a) Section 28H applies to an intended parent even if the intended parent died during the
482	482	454period between the transfer of a gamete or embryo and the birth of the child.
483	483	455 (b) Except as otherwise provided in section 28K, an intended parent is not a parent of a
484	484	456child conceived by assisted reproduction under a gestational surrogacy agreement if the intended 23 of 32
485	485	457parent dies before the transfer of a gamete or embryo unless: (i) the surrogacy agreement
486	486	458provides otherwise; and (ii) the transfer of a gamete or embryo occurs not later than 36 months
487	487	459after the death of the intended parent or birth of the child occurs not later than 45 months after
488	488	460the death of the intended parent.
489	489	461 Section 28J. Judgment of parentage under gestational surrogacy agreement
490	490	462 (a) Except as otherwise provided in subsection (c) of section 28H or section 28K, before,
491	491	463on or after the birth of a child conceived by assisted reproduction under a gestational surrogacy
492	492	464agreement, any party to the agreement may commence a proceeding for a judgment of parentage:
493	493	465 (1) declaring that each intended parent is a parent of the child and ordering that parental
494	494	466rights and duties vest immediately on the birth of the child exclusively in each intended parent;
495	495	467 (2) declaring that the individual acting as gestational surrogate and the surrogate’s spouse
496	496	468or former spouse, if any, are not the parents of the child;
497	497	469 (3) designating the content of the birth record in accordance with chapter 46 and directing
498	498	470the department of public health to designate each intended parent as a parent of the child;
499	499	471 (4) to protect the privacy of the child and the parties, declaring that the court record and
500	500	472related pleadings shall be impounded in accordance with this section;
501	501	473 (5) if necessary, that the child be surrendered to the intended parent or parents;
502	502	474 (6) if necessary, that the hospital where the child will be or has been born, treat the
503	503	475intended parent(s) as the sole legal parent(s) for the purpose of naming and medical decisions;
504	504	476and 24 of 32
505	505	477 (7) for other relief the court determines necessary and proper.
506	506	478 (b) The court may issue an order or judgment under subsection (a) before and/or after the
507	507	479birth of the child, as requested by the parties.
508	508	480 (c) Neither this state or the department of public health nor any town clerk nor the
509	509	481hospital where the child is to be born or is born is a necessary party to a proceeding under
510	510	482subsection (a). Any party to the surrogacy agreement not joining in the action shall be provided
511	511	483with notice of the proceeding.
512	512	484 (d) A complaint under this section shall include: (i) sworn affidavits of the parties to the
513	513	485surrogacy agreement and the assisted reproductive physician demonstrating the intent of the
514	514	486parties for the intended parent or parents to be the sole legal parent or parents of the child and
515	515	487that the child was born pursuant to assisted reproduction and (ii) certifications from the attorneys
516	516	488representing the intended parent(s) and the individual acting as gestational surrogate that the
517	517	489requirements of sections 28B, 28C, and 28D have been met. A complaint supported by such
518	518	490affidavits and certifications shall be sufficient to establish parentage, and a hearing shall not be
519	519	491required unless the court requires additional information which cannot reasonably be ascertained
520	520	492without a hearing.
521	521	493 (e) Upon a finding that the complaint satisfies subsection (d), a court shall expeditiously,
522	522	494but no later than sixty (60) days from the docketing of the complaint, issue a judgment of
523	523	495parentage. Such parentage judgments issued under this section shall conclusively establish or
524	524	496affirm, where applicable, the parent-child relationship.
525	525	497 (f) In the event the certification required by subsection (d) of this section cannot be made
526	526	498because of a technical or nonmaterial deviation from the requirements of sections 28B, 28C, and 25 of 32
527	527	49928D of this chapter, the court may nevertheless enforce the agreement and issue a judgment of
528	528	500parentage if the court determines the agreement is in substantial compliance with the
529	529	501requirements of said sections.
530	530	502 (g) On request of a party, the court may close a proceeding under this section to the
531	531	503general public. All complaints, pleadings, papers or documents filed pursuant to this section,
532	532	504including docket entries, shall not be available for inspection, unless a judge of probate and
533	533	505family court of the county where such records are kept, for good cause shown, shall otherwise
534	534	506order or unless requested by the child or the parties. All such complaints, pleadings, papers or
535	535	507documents shall be segregated.
536	536	508 Section 28K. Effect of gestational surrogacy agreement
537	537	509 (a) A gestational surrogacy agreement that substantially complies with sections 28B,
538	538	51028C, and 28D is enforceable.
539	539	511 (b) If a child was conceived by assisted reproduction under a gestational surrogacy
540	540	512agreement that does not substantially comply with sections 28B, 28C, and 28D, the court shall
541	541	513determine the rights and duties of the parties to the agreement consistent with the intent of the
542	542	514parties at the time of execution of the agreement. Each party to the agreement and any individual
543	543	515who at the time of the execution of the agreement was a spouse of a party to the agreement has
544	544	516standing to maintain a proceeding to adjudicate an issue related to the enforcement of the
545	545	517agreement.
546	546	518 (c) Except as expressly provided in a gestational surrogacy agreement or subsection (d)
547	547	519or (e) of this section, if the agreement is breached by the individual acting as gestational 26 of 32
548	548	520surrogate or 1 or more intended parents, the non-breaching party is entitled to the remedies
549	549	521available at law or in equity.
550	550	522 (d) Specific performance is not a remedy available for breach by an individual acting as
551	551	523gestational surrogate of a provision in the agreement that the individual acting as gestational
552	552	524surrogate be impregnated, terminate or not terminate a pregnancy, or submit to medical
553	553	525procedures.
554	554	526 (e) Except as otherwise provided in subsection (d), if an intended parent is determined to
555	555	527be a parent of the child, specific performance is a remedy available for:
556	556	528 (i) breach of the agreement by an individual acting as gestational surrogate which
557	557	529prevents the intended parent from exercising immediately on birth of the child the full rights of
558	558	530parentage; or
559	559	531 (ii) breach by the intended parent which prevents the intended parent’s acceptance,
560	560	532immediately on birth of the child conceived by assisted reproduction under the agreement, of the
561	561	533duties of parentage.
562	562	534 Section 28L. Requirements to validate genetic surrogacy agreement
563	563	535 (a) Except as otherwise provided in section 28O, a genetic surrogacy agreement shall be
564	564	536validated by a probate and family court. A proceeding to validate the agreement shall be
565	565	537commenced before assisted reproduction related to the surrogacy agreement.
566	566	538 (b) The court shall issue an order validating a genetic surrogacy agreement if the court
567	567	539finds that:
568	568	540 (i) sections 28B, 28C, and 28D of this chapter are satisfied; and 27 of 32
569	569	541 (ii) all parties entered into the agreement voluntarily and understand its terms.
570	570	542 (c) An individual who terminates a genetic surrogacy agreement under section 28M shall
571	571	543file notice of the termination with the court and parties. On receipt of the notice, the court shall
572	572	544vacate any order issued under subsection (b).
573	573	545 Section 28M. Termination of genetic surrogacy agreement
574	574	546 (a) A party to a genetic surrogacy agreement may terminate the agreement as follows: An
575	575	547intended parent or individual acting as genetic surrogate who is a party to the agreement may
576	576	548terminate the agreement at any time before a gamete or embryo transfer by giving notice of
577	577	549termination in a record to all other parties. If a gamete or embryo transfer does not result in a
578	578	550pregnancy, a party may terminate the agreement at any time before a subsequent gamete or
579	579	551embryo transfer. The notice of termination shall be attested by a notary or witnessed.
580	580	552 (b) An intended parent or individual acting as genetic surrogate who terminates the
581	581	553agreement after the court issues an order validating the agreement under sections 28L or 28O of
582	582	554this chapter, but before the individual acting as genetic surrogate becomes pregnant by means of
583	583	555assisted reproduction, shall also file notice of the termination with such court.
584	584	556 (c) A person may not terminate a validated genetic surrogacy agreement if a gamete or
585	585	557embryo transfer has resulted in a pregnancy.
586	586	558 (d) On termination of the genetic surrogacy agreement, the parties are released from all
587	587	559obligations under the agreement except that any intended parent remains responsible for all
588	588	560expenses incurred by the individual acting as genetic surrogate through the date of termination
589	589	561which are reimbursable under the agreement. Unless the agreement provides otherwise, the 28 of 32
590	590	562individual acting as surrogate is not entitled to any non-expense related compensation paid for
591	591	563acting as a surrogate.
592	592	564 (e) Except in a case involving fraud, neither an individual acting as genetic surrogate nor
593	593	565the surrogate’s spouse or former spouse, if any, is liable to the intended parent or parents for a
594	594	566penalty or liquidated damages, for terminating a genetic surrogacy agreement under this section.
595	595	567 Section 28N. Parentage under validated genetic surrogacy agreement
596	596	568 (a) On birth of a child conceived by assisted reproduction under a genetic surrogacy
597	597	569agreement validated under section 28L or 28O of this chapter, each intended parent is, by
598	598	570operation of law, a parent of the resulting child.
599	599	571 (b) On birth of a child conceived by assisted reproduction under a genetic surrogacy
600	600	572agreement validated under section 28L or 28O of this chapter, the intended parent or parents
601	601	573shall file a notice with the court that validated the agreement that a child has been born as a result
602	602	574of assisted reproduction. Upon receiving such notice, the court shall immediately, or as soon as
603	603	575practicable, issue an order without notice and hearing:
604	604	576 (i) declaring that any intended parent or parents is a parent of a child conceived by
605	605	577assisted reproduction under the agreement and ordering that parental rights and duties vest
606	606	578exclusively in any intended parent;
607	607	579 (ii) declaring that the individual acting as genetic surrogate and the surrogate’s spouse or
608	608	580former spouse, if any, are not parents of the child; 29 of 32
609	609	581 (iii) designating the contents of the birth certificate in accordance with chapter 46 and
610	610	582directing the department of public health to designate any intended parent as a parent of the
611	611	583child;
612	612	584 (iv) to protect the privacy of the child and the parties, declaring that the court record is
613	613	585not open to inspection in accordance with section 28J;
614	614	586 (v) if necessary, that the child be surrendered to the intended parent or parents; and
615	615	587 (vi) for other relief the court determines necessary and proper.
616	616	588 (c) Except as otherwise provided in subsection (d) or section 28P, if, due to a clinical or
617	617	589laboratory error, a child conceived by assisted reproduction under a genetic surrogacy agreement
618	618	590is not genetically related to an intended parent or a donor who donated to the intended parent or
619	619	591parents, each intended parent, and not the individual acting as genetic surrogate and the
620	620	592surrogate’s spouse or former spouse, if any, is a parent of the child.
621	621	593 (d) If a child born to an individual acting as genetic surrogate is alleged not to have been
622	622	594conceived by assisted reproduction, the court may, upon finding sufficient evidence, order
623	623	595genetic testing to determine the genetic parentage of the child. If the child was not conceived by
624	624	596assisted reproduction and the second source of genetic material is the spouse of the individual
625	625	597acting as genetic surrogate, then the surrogate and the spouse shall be found to be the parents of
626	626	598the child. If the second genetic source is an individual other than the spouse of the surrogate,
627	627	599then parentage shall be determined as provided in sections 1 through 27 of this chapter.
628	628	600However, if the second genetic source is an intended parent, the court, in its sole discretion, may
629	629	601determine parentage under sections 1 through 27 of this chapter. Unless the genetic surrogacy
630	630	602agreement provides otherwise, the individual acting as genetic surrogate is not entitled to any 30 of 32
631	631	603non-expense related compensation paid for acting as a surrogate if the child was not conceived
632	632	604by assisted reproduction.
633	633	605 (e) If an intended parent fails to file the notice required under subsection (b) of this
634	634	606section, the individual acting as genetic surrogate may file with the court, not later than 60 days
635	635	607after the birth of a child conceived by assisted reproduction under the agreement, notice that the
636	636	608child has been born to the individual acting as genetic surrogate. On proof of a court order issued
637	637	609under sections 28L or 28O of this chapter validating the agreement, the court shall order that
638	638	610each intended parent is a parent of the child.
639	639	611 Section 28O. Effect of nonvalidated genetic surrogacy agreement
640	640	612 (a) A genetic surrogacy agreement, whether or not in a record, that is not validated under
641	641	613section 28L is enforceable only to the extent provided in this section and section 28Q.
642	642	614 (b) If all parties agree, a court may validate a genetic surrogacy agreement after assisted
643	643	615reproduction has occurred but before the birth of a child conceived by assisted reproduction
644	644	616under the agreement if the court finds that:
645	645	617 (i) sections 28B, 28C, or 28D of this chapter are satisfied; and
646	646	618 (ii) all parties entered into the agreement voluntarily and understand its terms.
647	647	619 (c) If a child conceived by assisted reproduction under a genetic surrogacy agreement that
648	648	620is not validated under section 28L or subsection (b) of this section is born, the individual acting
649	649	621as genetic surrogate is not automatically a parent and the court shall adjudicate parentage of the
650	650	622child based on the best interest of the child, taking into account the factors in subsection (a) of
651	651	623section 26 and the intent of the parties at the time of the execution of the agreement. 31 of 32
652	652	624 (d) The parties to a genetic surrogacy agreement have standing to maintain a proceeding
653	653	625to adjudicate parentage under this section.
654	654	626 Section 28P. Parentage of deceased intended parent under genetic surrogacy agreement
655	655	627 (a) Except as otherwise provided in section 28N or 28O on birth of a child conceived by
656	656	628assisted reproduction under a genetic surrogacy agreement, each intended parent is, by operation
657	657	629of law, a parent of the child, notwithstanding the death of an intended parent during the period
658	658	630between the transfer of a gamete or embryo and the birth of the child.
659	659	631 (b) Except as otherwise provided in section 28N or 28O, an intended parent is not a
660	660	632parent of a child conceived by assisted reproduction under a genetic surrogacy agreement if the
661	661	633intended parent dies before the transfer of a gamete or embryo unless: (i) the agreement provides
662	662	634otherwise; and (ii) the transfer of the gamete or embryo occurs not later than 36 months after the
663	663	635death of the intended parent, or birth of the child occurs not later than 45 months after the death
664	664	636of the intended parent.
665	665	637 Section 28Q. Breach of genetic surrogacy agreement
666	666	638 (a) Subject to section 28M(d), if a genetic surrogacy agreement is breached by an
667	667	639individual acting as a genetic surrogate or 1 or more intended parents, the non-breaching party is
668	668	640entitled to the remedies available at law or in equity.
669	669	641 (b) Specific performance is not a remedy available for breach by an individual acting as
670	670	642genetic surrogate of a requirement of a validated or nonvalidated genetic surrogacy agreement
671	671	643that the surrogate be impregnated, terminate or not terminate a pregnancy, or submit to medical
672	672	644procedures. 32 of 32
673	673	645 (c) Except as otherwise provided in subsection (b), specific performance is a remedy
674	674	646available for: (i) breach of a validated genetic surrogacy agreement by an individual acting as
675	675	647genetic surrogate of a requirement which prevents an intended parent from exercising,
676	676	648immediately upon birth of the child, the full rights of parentage; or (ii) breach by an intended
677	677	649parent which prevents the intended parent’s acceptance, immediately upon birth of the child, of
678	678	650the duties of parentage.