Surrogacy in Massachusetts
Welcome to our comprehensive guide on surrogacy laws in Massachusetts. If you're considering surrogacy in the Bay State, it's crucial to understand the legal landscape surrounding this life-changing process.
This surrogacy guide navigates you through the Massachusetts legal framework for surrogacy agreements. Explore the rights and responsibilities of all involved parties, from intended parents to surrogates, and explore the detailed requirements for surrogacy contracts. Learn everything you need to know about gestational surrogacy in Massachusetts.
Gestational Surrogacy in Massachusetts
Gestational surrogacy is supported in Massachusetts by three notable cases decided by the Commonwealth’s Superior Court – Hodas v. Morin (2004); Culliton v. Beth Israel Deaconess Med. Ctr. (2002); and R.R. v. M.H. (1998). Couples (married or partnered) and single individuals, regardless of sexual orientation, may obtain a pre-birth order so long as there is some genetic connection. A hearing is typically not required but is ultimately up to the judge’s discretion.
Surrogacy Is Legal in Massachusetts
Yes. Gestational surrogacy is legal in Massachusetts pursuant to Massachusetts published case law.
Massachusetts has clear legal opinions supporting gestational surrogacy, providing a secure legal environment for intended parents and surrogates. Courts in the state are known for upholding gestational surrogacy agreements.
The state is home to world-class medical facilities and reproductive clinics like CCRM Boston that offer advanced fertility treatments and surrogacy services. Massachusetts is also home to many professionals experienced in reproductive law, facilitating a smoother legal process for surrogacy arrangements, including ConceiveAbilities’ Director of Legal Services, Gina-Marie Madow.
Understanding Surrogacy Laws in Massachusetts
Legal Parentage
The legal parentage process is the critical step whereby parentage is determined. Depending on where your child is born, the parentage process will be completed either pre- or post-birth.
Every state, whether pre-birth, post-birth, or some combination of the two, has its own unique process and requirements. Working with an experienced Assisted Reproductive Technology lawyer and reputable agency is critical to the success of a surrogacy journey. One of the many benefits of working with an established agency like ConceiveAbilities is the legal oversight, education, and support provided to both intended parents and gestational surrogates.
Pre-Birth Orders
The pre-birth process means that the relevant state law provides an avenue for the parties to present an order to a judge for entry prior to the child being born that establishes the intended parent(s) as the legal parents of the child. It will also likely direct the hospital to release the child to the intended parents after discharge and order the state’s Office of Vital Records to name the intended parents on the child’s birth certificate.
Massachusetts generally has a process for pre-birth orders that establish the intended parents' legal parental rights assuming there is at least one genetic connection between the Intended parent(s) and the embryo.
Post-Birth Processes
The post-birth process is overall procedurally the same as the pre-birth, but it occurs after the child is born. Often this is because the relevant state law contemplates the existence of a live child before anything can be filed or entered. But the ultimate result is the same – a birth certificate with the intended parents’ names and secure legal parentage of the child in favor of the intended parents. Post-birth court orders or processes may also be necessary if an available pre-birth order process isn't followed, ensuring legal parentage.
Massachusetts permits post-birth orders. Additionally, a post-birth acknowledgment of paternity will be necessary if the intended parents are not married and only one parent is genetically related to the child.
Common Questions About Massachusetts Surrogacy Law
Do You Need a Medical Need for Surrogacy in Massachusetts?
Although there is no specific law on this, It is best practice to only pursue surrogacy in Massachusetts if you have a medical need.
Are There Any Requirements or Specifications for Intended Parent(s) as It Relates to Marital Status?
No, Massachusetts does not require intended parents to be married. Massachusetts also allows single individuals to pursue surrogacy.
Do Intended Parent(s) need a genetic connection to the embryo?
In Massachusetts, there has to be at least one genetic connection between the intended parent(s) and the embryo.
Can International Intended Parent(s) Pursue Surrogacy in Massachusetts?
Yes, international parents can pursue surrogacy in Massachusetts. Learn more about becoming a parent with international family building.
Can LGBTQIA+ Intended Parents safely pursue surrogacy in your state?
Yes Massachusetts allows surrogacy for all individuals including the gay and LGBTQ+ community, regardless of sexual orientation. Learn more about surrogacy and the LGBTQ+ Community.
Can I Use My Own Surrogate? Is Altruistic Surrogacy Permitted?
Yes, altruistic surrogacy is permitted in Massachusetts. Even if you have a surrogate, you may still choose to partner with a surrogacy agency to navigate your surrogacy journey.
Are there any residency requirements for either Intended Parent(s) or surrogates in Massachusetts?
Generally no. Intended parents do not need to be Massachusetts residents to carry out a surrogacy journey in Massachusetts. Similarly, Gestational Carriers are not required to reside in Massachusetts, but for the law to cover their agreement, they usually must give birth within the state.
Are there any written laws (statute or case law) relating to the rights of gestational carriers?
As of January of 2024, Massachusetts does not have an explicit statute related to surrogate rights, but reputable agencies turn to ASRM for best practices.
Legal Surrogacy Terms You Should Know
Surrogacy
Surrogacy is a modern and growing means of bringing new life into the world, where a woman carries a baby for another person or a couple. The intended parents typically undergo IVF meaning fertilization outside of the body, to transfer their embryo into the surrogate's uterus. Learn more about American Society of Reproductive Medicine (ASRM) surrogacy recommendations.
Gestational Surrogacy
Gestational surrogacy is the most common surrogacy practiced today. The surrogate is not genetically or legally related to the baby and is usually compensated for her time and service by the intended parents. Most surrogacy agencies exclusively practice gestational surrogacy. Learn more about What Is A Surrogate?.
Traditional Surrogacy
A traditional surrogate uses her own egg meaning she is biologically related to the child, while a gestational carrier is not genetically related. This typically means the embryo is created through IVF with the surrogate's eggs and Intended Father’s or donor’s sperm. In lieu of IVF, parties could also perform Intrauterine Insemination ("IUI") with the Intended Father’s or donor’s sperm. This is not common in modern family building and rarely practiced today. Learn more about the differences between gestational surrogacy and traditional surrogacy.
Altruistic Surrogacy
Altruistic surrogacy, sometimes referred to as compassionate surrogacy, is when the surrogate is not financially compensated beyond reimbursement of medical and other pregnancy-related expenses for carrying a child. Many times this is when a friend or relative is the surrogate.
Intended Parent(s)
The intended parent or parents is the individual or a couple who partner with a surrogate to carry and give birth to a child on the intended parent’s behalf. There are many reasons people choose surrogacy to make their dream of a family come true including infertility, medical reasons, and non-medical reasons.
Gestational Surrogate
A gestational surrogate is a woman who carries a child for someone who cannot. The surrogate mother undergoes IVF to have an embryo that has no genetic relation to her transferred and she carries the baby to term for the Intended Parent(s). The embryo can be created by both the parents’ egg and sperm or with an egg donor and/or a sperm donor. In modern surrogacy with a gestational surrogate, her egg is not used. Massachusetts is a surrogacy friendly state. Learn more about becoming a surrogate in Massachusetts.
Compensation
Gestational carrier compensation can include medical, legal, and living expenses. Learn more about surrogate pay.
Gestational Carrier Agreement or Surrogacy Agreement
A Gestational Carrier Agreement (GCA) or Surrogacy Agreement is a comprehensive, written contract between Intended Parents, the surrogate, and the surrogate’s partner/spouse, if any.
The GCA outlines legal rights, expectations, responsibilities, compensation, and other potential contingencies. This agreement happens before the embryo transfer and details the parties' rights, obligations, intentions, and expectations to each other in connection with the surrogacy process. It also addresses many other aspects of the relationship and journey including medical considerations, location of delivery, future contact between the parties, insurance (both health and life), payment of medical bills, liability for medical complications, and Intended Parents' presence during doctor's visits and at delivery.
Financial considerations such as the surrogate’s compensation and expenses, including everything from lost wages, legal fees, invasive procedure fees, and medical fees to childcare costs and maternity clothes are also addressed. Legal counsel will ensure you have a properly executed surrogacy agreement, customized to your unique circumstances and the legal requirements of the state where your surrogate resides.
Clinic Consent Form
Many fertility centers have standardized forms for patients to complete as part of the informed consent process. However, these forms are consents between the Intended Parents and fertility center and between the donors and the fertility center; a legal contract between the Intended Parents and donors is still needed, and both Intended Parents and donors should have separate independent legal representation. Fertility center consent forms do not take into account the nuances of parentage and donor laws in each state. The forms often go beyond the concepts of procedures, benefits, and risks and reach into issues of establishment and relinquishment of parental rights. Such boilerplate provisions in consent often cannot resolve legal parentage, especially when neither party has separate independent legal representation.
Navigating Massachusetts surrogacy laws requires careful consideration and legal expertise. By staying informed and working with experienced professionals, you can embark on a surrogacy journey with confidence and legal security.
For personalized legal advice and assistance, consult with a reputable reproductive law attorney in Massachusetts.
DISCLAIMER: The information in this blog does not constitute legal advice and should not be construed as such. The information contained is strictly for informational purposes only. ConceiveAbilities does not represent or warrant the content to be error-free.