STATE SURROGACY LAW:

Massachusetts Surrogacy Laws

Learn More

Overview

Gestational surrogacy is permitted by several instances of case law: Culliton v. Beth Israel Deaconess Med. Ctr. (2002), which authorizes the Massachusetts Probate and Family Courts to issue pre-birth orders; and Hodas v. Morin (2004), which authorizes the Probate & Family Court where the child is anticipated to be born to issue a pre-birth parentage order and determined that there is no residency requirement for issuing a pre-birth parentage order.

Types of Surrogacy Available in Massachusetts

Can a parentage order be obtained for the following?

Gestational surrogacy

YES

Altruistic surrogacy

YES

Traditional surrogacy

NO, although no surrogacy laws prohibit traditional surrogacy in Massachusetts, legal procedures prefer to treat this process as an adoption. As such, the traditional surrogate is unable to relinquish parental rights until four days after the child is born and the Intended Parent not on the birth certificate must complete a stepparent adoption. The Gestational Carrier remains on the birth certificate until the adoption is completed. However, the child is allowed to be placed with the Intended Parent(s). In Massachusetts, both parents must adopt their child.

Parentage

Who can be declared as the parent(s) of a child from a surrogate via a court parentage order?

– Both Intended Parent(s) can be named on the parentage order

– Only a genetic Intended Parent can be named on the parentage order. A non-genetic Intended Parent will need to establish parentage via a second or stepparent adoption following birth.

How are Intended Parent(s) Listed on the Birth Certificate?

Intended Parent(s) may be listed as Parent – Parent.

Rights of Egg or Sperm Donor(s)

According to Mass. G.L. c. 46, § 4B, “Any child born to a married woman as a result of artificial insemination with the consent of her husband, shall be considered the legitimate child of the mother and such husband.” While this statute specifically refers to sperm donors, all statutes in Massachusetts must be read in a gender-neutral manner (Goodridge v. Dept. of Public Health). The donor is not a parent of a child conceived through any form of assisted reproduction (Adoption of a Minor). Parentage can also be established through intent and conduct to parent (Partanen v. Gallaher).

Surrogacy Steps in Massachusetts

Surrogacy Process in Massachusetts

Select your agency if applicable

Match with a gestational carrier

Complete medical and psychological evaluations at the fertility center

Select attorneys for the intended parents and gestational carrier and complete the gestational carrier agreement

Begin IVF cycle with surrogate

Pre-birth order

Massachusetts allows pre-birth orders to be filed.

Delivery and birth certificate finalization

Birth Certificate Timeline

Birth certificate

Takes 5-10 business days, but can depend upon city/town where the child is born.

Legal and medical steps involved in the surrogacy process may differ from case to case. Please speak with your agency and attorneys about how the process might look for you.

Court Processes

Surrogacy Contracts

There are several case laws dealing with the enforceability of surrogacy contracts in Massachusetts; R.R. v. M.H. ruled that traditional surrogacy contracts aren’t enforceable, but there are other case laws that don’t address the enforceability of gestational surrogacy. It’s essential to talk to experienced legal counsel before proceeding with the surrogacy process.

Independent Counsel

Independent counsel is strongly recommended, but not required, for all parties involved in a surrogacy agreement. One attorney/firm can’t represent all parties in a gestational carrier agreement, so if one party isn’t represented by independent counsel, then they are acting pro se (i.e., representing themselves).

As of September 2023, there is legislation pending in Massachusetts (S.947 / H.1713) which would require all parties be represented by separate and independent counsel.

Requirements for Surrogates and Intended Parent(s)

Massachusetts has no statutory requirements that must be met for surrogates and Intended Parent(s) to participate in a surrogacy agreement. However, agencies and fertility clinics have their own requirements based on the American Society for Reproductive Medicine, the American Medical Association, and the American Academy of Adoption and Assisted Reproduction Attorneys.

The pending legislation outlines statutory requirements (as of September 2023). The statute is based on the UPA (United Parentage Act)and the requirements are similar.

Birth Orders

Do courts issue pre-birth orders?

YES

Do courts issue post-birth orders?

YES

Are hearings required to obtain pre-birth orders?

VARIES

Massachusetts surrogacy courts grant pre-birth parentage orders to couples (married or unmarried) and individuals. As of Partanen v. Gallagher (2016), Intended Parent(s) don’t need a genetic connection to their child to get a pre-birth parentage order.

Depending on the judge, a hearing may be required; attendance requirements also vary. If attendance is required, it is possible to request a virtual hearing for those who cannot attend in person.

Bases of Venue

What are the bases of venue?

County where child is born; county where Intended Parents live; or county where Gestational Carrier lives

Do rulings vary by venue?

Can you file a motion to waive venue?

International Issues

Because of the surrogacy-friendly courts, International Intended Parent(s) may find doing surrogacy in Massachusetts a relatively straightforward process. International Intended Parent(s) will have additional legal steps to complete before their return home regarding their country’s immigration and citizen laws that impact the child. It’s imperative the international Intended Parent(s) speak with an experienced attorney in their home country about the facts of their situation. The law of more than one country will need to be considered if the Intended Parent(s) are citizens or residents of more than one country.

Residency Requirements

Does the state impose residency requirements on either the surrogate or Intended Parent(s):

Birth Certificates

Can an international same-sex male couple receive an initial birth certificate naming the biological father and Gestational Carrier?

YES

Can they obtain a birth certificate naming only the Intended Parent(s) with no mention of the Gestational Carrier?

YES, however, if it isn’t done through a pre-birth determination of parentage, then it must be done through a post-birth determination of parentage or a post-birth adoption (Gestational Carrier would be on the original birth certificate; amended birth certificate would list both Intended Parents, with no mention of the Gestational Carrier).

Passport Timeline

6-8 weeks after submitting birth certificate.

Passports can be expedited for a 2-3 week delivery with an extra fee. Intended Parent(s) can also visit a regional passport agency to receive one within 1 business day. The Boston passport office has reopened, but appointments are difficult to obtain for a 1 business day passport.

Passports are regulated at the federal level in the United States. To learn more about the process of receiving a US passport, visit Travel.State.gov.

Consulting Attorneys

Kathleen DeLisle
Nichols, DeLisle & Lightholder P.C.
14 Main Street
Southborough, MA 01772
(508) 460-0500
kadelisle@ndllaw.com
ndllaw.com

Legal Disclaimer

The content contained in this website is provided for informational purposes only. Content contained herein may or may not reflect the most current legal information on the subject; accordingly, this website is not promised to be correct or complete at any given time. Outcomes referenced should not be interpreted as an indication of future outcomes. Love & Kindness Surrogacy explicitly disclaims all liability for actions taken or not taken based on the contents of this website.

This website does not constitute a replacement for legal advice or counsel. Always consult an attorney before beginning the surrogacy process.

Last updated October 2023