GESTATIONAL SURROGACY IN LOUISIANA
Louisiana Surrogacy Bill HB 1102 took effect on August 1, 2016. This bill restricts gestational surrogacy to married, heterosexual couples who both use their own embryo/sperm and includes a no compensation requirement. If one enters into a surrogacy agreement that is not sanctioned by the new law, anyone involved is subject to civil and criminal penalties.
Although the following guide can give you a better understanding of the general rules and regulations of surrogacy in Louisiana, 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 Louisiana.
Is Gestational Surrogacy Legal in Louisiana?
Yes but in very limited circumstances. Surrogacy Bill HB 1102 (effective August 1, 2016) legalized gestational surrogacy arrangements but only in very restrictive instances where the intended parents are Louisiana residents and are a married heterosexual couple who are both genetically related to the child (i.e., neither a sperm nor egg donor was used).
Is Traditional Surrogacy Legal in Louisiana?
No. Under La. Rev. Stat. § 9:2718, contracts that compensate a traditional surrogate are void and unenforceable as contrary to public policy.
Is Compensated Surrogacy Legal in Louisiana?
No. The 2016 Louisiana Gestational Carrier Act forbids surrogate compensation.
Creating a Louisiana Surrogacy Contract
Surrogacy contracts in Louisiana are binding and enforceable for married, heterosexual couples who both use their own embryo/sperm if they are in writing, signed by both parties, and found in accordance with all requirements set forth under the Act (see below). Furthermore, each party must have resided in Louisiana for at least 180 days prior to the execution of a surrogacy contract and it must be court-approved prior to any embryo transfer.
In order for a surrogacy contract to be enforceable in a court of law, it must:
- Be signed by the intended parents, the surrogate, and her spouse (if applicable)
- Be approved by a court before the medical process of surrogacy begins
- Be altruistic in nature
- Not require a surrogate to terminate a pregnancy for any reason, including “an actual or potential disability, impairment, genetic variation, or any other health condition or a discrimination based on gender, or for the purposes of the reduction of multiple fetuses”
In addition, the surrogate and intended parents must meet the following requirements:
- Be between the ages of 25–35
- Have given birth to at least one child
- Agree to become pregnant with the intended parents’ gametes via embryo transfer
- Have undergone two counseling sessions with a mental health professional prior to executing the contract
- Agree to attend a minimum of one post-birth counseling session
- Acknowledge that the surrogate has sole authority with respect to medical decision-making, consistent with the rights of a pregnant woman carrying her own child
- Have a valid will or succession plan
- Prove that the intended mother has “medical necessity” to pursue surrogacy rather than traditional reproductive methods
Both intended parents and their surrogate must be represented by separate surrogate attorneys to ensure both parties’ rights and interests are protected. These attorneys will negotiate a contract that addresses at least the following:
- The rights and responsibilities of each party
- Any potential risks and liabilities and the steps to take should they occur
- Surrogate compensation and other financial information, like surrogacy insurance
- Agreements on sensitive issues like selective reduction and termination
- Contact expectations
- And more
Only after this contract is finalized will fertility clinics and medical professionals begin the medical process of surrogacy.
Determining Legal Parentage in Louisiana
Because of Louisiana surrogacy laws, only married heterosexual couples who are residents of Louisiana and who are both genetically related to the child (i.e., neither a sperm or egg donor was used) can obtain a pre-birth parentage orders. Intended parents in any other situation cannot obtain a pre-birth or post-birth order.
Same-Sex Surrogacy in Louisiana
Q: Is Same-Sex Surrogacy Legal in Louisiana?
A: No. The surrogacy laws in Louisiana make it illegal for same-sex couples to enter into a surrogacy contract because they cannot provide both sperm and egg cells for conception
Q: Are There any Additional Laws Impacting Same-Sex Parenting in Louisiana?
A: No. There are no additional laws impacting same-sex parents in Louisiana.
Q: Are Surrogacy Contracts (Whether Compensated or Altruistic) Enforceable in Louisiana?
A: If a Louisiana surrogacy contract meets all of the requirements stated in the state surrogacy law, the contract is enforceable.
Q: Are There Any Particular Laws for Parents Outside the United States Who Complete a Surrogacy in Louisiana?
A: In Louisiana, surrogacy contracts can only be created between residents of the state; therefore, international intended parents cannot complete a surrogacy in Louisiana.
Q: When Do Intended Parents Need to Complete an Adoption After Birth?
A: Intended parents who use a donor egg, sperm, or embryo and any intended parents who are unmarried must complete a post-birth adoption. Intended parents must be present at a hearing in order to obtain a post-birth adoption order.
Q: Does Louisiana Allow Second-Parent Adoptions? Who Would Need to Complete a Second-Parent Adoption vs. a Stepparent Adoption (If Applicable)?
A: No, Alabama does not allow second-parent adoptions.
Q: If Intended Parents Cannot Complete a Second-Parent Adoption, How Can Unmarried Non-Biological Intended Parents Protect Their Parental Rights?
A: Unmarried intended parent couples will most likely not be able to complete a surrogacy in Louisiana since they will be unable to complete a second-parent adoption after their child is born. They may be able to complete a surrogacy in another state, obtain a proper adoption order there, and then return to Louisiana but this occurs on a case-by-case basis. It is important to consult with an experienced Louisiana surrogate attorney to guide you through this process.
Q: What Happens in Cases Where Intended Parents Use a Donor Egg, Sperm or Embryo?
A: Intended parents who use a donor egg, sperm, or embryo cannot legally complete a surrogacy in Louisiana. Any surrogacy contract that involves the use of a donor gamete is unlawful in this state, and the parties can be subject to fines and imprisonment.
REPRODUCTIVE LAW PRACTITIONERS
New Orleans, LA
Lauren Gay Coleman
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