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.
Can a parentage order be obtained for the following?
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.
Intended Parent(s) may be listed as Parent – Parent.
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).
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.
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 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.
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.
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.
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.
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