Massachusetts surrogacy laws & gestational process guidelines

Is Gestational Surrogacy Legal 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.

Is Traditional Surrogacy Legal 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.

Is Compensated Surrogacy Legal in Massachusetts?

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:

• Mock cycle compensation
• Embryo transfer compensation
• Starting medication compensation
• Monthly allowance for miscellaneous expenses
• Monthly Housekeeping budget
• Maternity clothing budget
• Medical expenses
• Travel to and from clinic/hospital
• Lost wages if applicable
• Child care if bed rest is required
• Term life insurance
• Medical insurance
• Independent legal counsel
• Psychological counseling
• Other depending on agency

Creating a Massachusetts Surrogacy Contract

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:

• Rights and responsibilities of each party
• Potential risks and liabilities for each party, and steps to follow should one occur
• Surrogate compensation and other financial details, including surrogacy insurance
• Contact expectations
• And more

Determining Legal Parentage in Massachusetts

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.