Having a child is a monumental moment in many families’ lives. Social media sites such as Pinterest, Instagram and Facebook provide many ideas on planning a baby shower or gender reveal, as well as lists of the “Top 10 Newborn Must-Haves.” Information inundates couples with all they could ever imagine on these topics—seemingly, the moment they conceive! However, much of this joy is quickly eliminated when a couple discovers that they will have difficulty conceiving and may not even be able to carry a child. This can bring about stress, marital issues, and many questions for doctors. When a couple discovers that one partner is infertile, or that a woman is unable to conceive or have a healthy pregnancy, a number of options become available. Whether a couple opts for adoption, IVF, or surrogacy, parenthood is still possible for couples in these difficult situations.
The focus of this blog post will be on surrogacy, and specifically, the laws surrounding the process. Hiring a surrogate or gestational carrier is an expensive process. It is also one that can be daunting without the proper planning and legal knowledge. When hiring a surrogate, it is likely that a surrogacy contract will be in place, detailing the legal rights of the surrogate and biological parents. Our experienced family law attorneys suggest that each party specifically identify the rights of both sides prior to the birth in a written agreement. Having a child is an incredibly emotional process, so we encourage our clients to use a surrogacy agency. Clients should have all the proper legal documentation in place.
What MA laws concern surrogacy?
In Massachusetts, there are no specific laws that address surrogacy directly. While there are laws that permit artificial insemination (MGL c. 46 s. 4B), and the necessary written consent required for adoption (MGL c. 210 s. 2), there are none that specifically discuss surrogacy, the surrogacy process, or parenting after using a surrogate. However, courts within the Commonwealth of Massachusetts have addressed issues about surrogacy contracts in several cases. As mentioned above, a surrogacy contract outlines the rights of all parties, as well as the pre-birth process.
R.R. v. M.H. & Another
The seminal case for this issue was R.R. v. M.H. & Another, where the court held that a surrogacy agreement was not enforceable. The court determined that a surrogacy contract was valid if the surrogate mother consented to the surrogacy for at least four days after a child’s birth, and the surrogate did not receive any compensation. Additionally, this case solidified what was necessary for an enforceable surrogacy contract. The court held that the husband of a surrogate mother had to give informed consent prior to insemination.
Also, it is necessary that a surrogate mother be a legal adult of 18, with at least one prior successful pregnancy. Each surrogate mother must have a physical and psychological evaluation prior to childbearing, Lastly, it must be confirmed that the “intended mother,” the mother who is deemed the biological parent, has a medical condition or health issue which would prevent them from carrying the child themselves.
Culliton v. Beth Israel Deaconess
Another important case regarding the Commonwealth and surrogacy is Culliton v. Beth Israel Deaconess. That case discussed birth certificates of children born by a surrogate or gestational carrier. The court held that biological parents of a child born by a surrogate or gestational carrier could be on a newborn’s birth certificate. The court further explains that in order for biological parents to appear on the certificate, both parents must be biological; additionally, the surrogate must consent to the birth certificate. Also, if any party or hospital where the child was born contests this, the names cannot be on the certificate.
Culliton is very important, because it allows expectant parents to have immediate responsibility of their child, even if the mother was not the carrier throughout the nine months of pregnancy. This ruling allows biological parents to assume parental responsibility as soon as possible; it also helps them avoid potential legal issues with a surrogate or gestational carrier.
What if you are not from Massachusetts? It is important to realize that the rulings in these cases create jurisdiction if a child is born in Massachusetts. For example, if your surrogate gives birth in a Massachusetts hospital, Massachusetts law does control.
Contact us:
Are you looking for an experienced Newburyport or Andover divorce lawyer or family law attorney? If you need more information about surrogacy parenting law or family law generally, you may schedule a free consultation with our office. Call 978-225-9030 during regular business hours or complete a contact form, and one of our experienced family law attorneys will respond to your phone call or submission promptly.