Massachusetts has no surrogacy laws created and approved by the state legislature. Instead, surrogacy in Massachusetts has a process based on three published surrogacy cases, established by the highest court in Massachusetts: Hodas v. Morin (2004); Culliton v. Beth Israel Deaconess Med. Ctr.(2002); R.R. v. M.H. (1998). Surrogacy is thereby a common and accepted practice in Massachusetts.
Although the following guide can give you a better understanding of the general rules and regulations of surrogacy in Massachusetts, it is not meant to be used as legal advice. It is important to consult with an experienced attorney to guide you through your unique journey.
Below is a list of some of the most frequently asked questions about surrogacy in Massachusetts.
Yes. Gestational surrogacy is permitted in the state pursuant to Massachusetts published case law. Surrogacy is now a common and accepted practice in Massachusetts.
Although there are no surrogacy laws in Massachusetts that prohibit traditional surrogacy, Massachusetts courts typically will NOT enforce a traditional surrogacy agreement. This surrogacy process is often treated as an adoption under state law. This means a traditional surrogate cannot consent to relinquish her rights until four days after the child is born, although she can immediately place the child with the intended parents. If the Intended Father is not related to the child, both intended parents will need to complete a full adoption.
Yes. Compensated gestational surrogacy is legal in Massachusetts; this is something that is established when the surrogacy contract between surrogates and intended parents is drafted. In addition to their base pay, surrogates are compensated for their time, the medical risks they accept, and the list of expenses below:
There are no surrogacy laws in Massachusetts regulating what must be included in a surrogacy contract. However, intended parents and their surrogate must be represented by separate surrogacy lawyers to ensure that the rights and interests of each party are protected. These attorneys will negotiate an agreement that addresses at least the following:
Pre-birth orders are available to intended parents regardless of their marital status, sexual orientation, or genetic relationship to the child. Massachusetts courts have granted pre-birth orders to married and unmarried couples, single parents, and same-sex couples. If a pre-birth order is not obtained, intended parents may need to complete a post-birth adoption or sign a Voluntary Acknowledgment of Parentage to establish their parental rights.
Below is a list of some of the most frequently asked questions about surrogacy in Massachusetts:
Yes. Surrogacy contracts are enforceable in Massachusetts, as established by case law. It is important to work with an experienced surrogacy attorney to ensure that all legal requirements are met and that the contract is legally binding.
No. International intended parents are subject to the same Massachusetts laws as domestic intended parents. It is important, however, that intended parents from another country speak with an immigration lawyer to ensure they follow the proper legal steps for taking their child home.
If a pre-birth order is not obtained, intended parents may need to complete a post-birth adoption to establish their parental rights. This is especially true in cases where there is no genetic connection between the intended parent and the child.
Yes. Second-parent adoptions are available in Massachusetts. Unmarried intended parents who cannot establish their parentage through a parentage order can complete a post-birth adoption. Married intended parents can complete a stepparent adoption.
Massachusetts allows pre-birth orders for intended parents who use a donor egg, sperm, or embryo. The use of a donor does not affect the ability of intended parents to obtain a parentage order before the birth of the child.
Yes. Same-sex couples and LGBT+ intended parents have the same legal rights and will experience generally the same surrogacy process as opposite-sex couples, with the exception of likely requiring an egg donor or sperm donor to complete the IVF procedure.
No. There are no additional laws impacting same-sex parents in this state.
Rich Vaughn
Los Angeles, CA
Rich@iflg.net
iflg.net
(323) 904-4733
Law Offices of Molly O’Brien
Los Angeles, CA
Molly@yourfertilitylawyer.com
iflg.net
www.yourfertilitylawyer.com
The Law Offices of D. Durand Cook
Culver City, CA
Durand@adoption-option.com
adoption-option.com
www.adoption-option.com
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