Massachusetts

Surrogacy Law in Massachusetts

Massachusetts Surrogacy Law: Types of Surrogacy

In Massachusetts, gestational surrogacy is permitted based on the verdicts of a trio of court cases: Hodas v. Morin (2004); Culliton v. Beth Israel Deaconess Med. Ctr. (2002); and R.R. v. M.H. (1998).

Traditional (genetic) surrogacy agreements are not likely to be upheld  by the court in Massachusetts.  Rather, case law suggests that parentage provisions in genetic surrogacy arrangements may not be enforceable.  Parentage in these situations is likely to be determined on a case-by-case basis, and expert legal advice is strongly recommended. The surrogate has to wait four days before she can legally relinquish her rights to the child, but she can place the child with the intended parents immediately. If the intended father is not biologically related to the child, then an adoption must be completed.

Are There Surrogate Requirements in Massachusetts?

Currently, no explicit requirements exist to serve as a gestational surrogate in the state of Massachusetts. However, legislation is pending, so we recommend confirming with legal counsel.

Does Massachusetts Surrogacy Law Allow for Pre-Birth Orders?

Parentage Orders: Courts in Massachusetts do grant pre-birth orders.

The conditions under which intended parents could be declared legal parents with a pre-birth order if at least one parent is genetically related to the child are listed below:

Yes

Married heterosexual couples, using their own egg and own sperm
Unmarried heterosexual couples, using their own egg and own sperm
Married heterosexual couples, using donor sperm or donor egg
Unmarried heterosexual couples, using donor sperm or donor egg
Married same sex couples, using either their own egg with donor sperm, or their own sperm with donor egg
Unmarried same sex couples, using either their own egg with donor sperm, or their own sperm with donor egg
Single individuals using own egg with donor sperm, or own sperm with donor egg

No

As a result of the 2016 Massachusetts case, Partanen v. Gallagher, when neither intended parent is genetically related to the resulting child, or when a same-sex couple is unmarried, a pre-birth order can now be obtained:

Yes

Married or unmarried heterosexual couples, using embryos created with donor egg and donor sperm
Married or unmarried same sex couples using embryos created with donor egg and donor sperm
Single individuals using embryos created with donor egg and donor sperm

No

Whose names go on the birth certificate in Massachusetts?

Same-sex parents are listed on a birth certificate as “parent and parent.”

Same-sex couples (male or female), US residents or not, can obtain a pre-birth orders listing both on the initial birth certificate.  Pre-birth orders are the preferred method of establishing parentage.

Same-sex parents are listed on a birth certificate as “parent and parent.”

 

Same-sex couples (male or female), US residents or not, can obtain a pre-birth orders listing both on the initial birth certificate.  Pre-birth orders are the preferred method of establishing parentage.

Surrogacy Conditions for Same-Sex Couples in Massachusetts

Surrogacy conditions in Massachusetts are favorable for same-sex couples and couples can obtain pre-birth orders, regardless of whether they are married.

Are There Options for Unmarried Intended Parents in the state of Massachusetts?

Yes, pre-birth orders are available for unmarried couples using a gestational surrogate.  Following the child’s birth, the parents may want to execute a voluntary acknowledgement of parentage (VAP) to further affirm the child’s parentage, but it is not required.

Egg Donation Law

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.” Further, Goodridge v. Dept. of Public Health (2003) stands for the principle that, pursuant to the Massachusetts Constitution, all statutes must be read as gender neutral.

A 2015 case also acknowledges, “We also understand G. L. c. 46, § 4B, which refers specifically to ‘artificial insemination,’ to include parentage of a child born through the use of any assisted reproductive technology,” (citing to Okoli v. Okoli, 81 Mass. App. Ct. 371, 377 (2012)) which likely broadens the meaning of the statute and helps to apply the statute to egg donation as well.

State law information verified by the following (ART) Assisted Reproductive Law attorney licensed in Massachusetts*

* This information is for general informational purposes only and is not, nor is it intended to be, legal advice. We strongly recommend retaining legal counsel, knowledgeable of reproductive law in the state.