Massachusetts surrogacy laws & gestational process guidelines

Is Gestational Surrogacy Legal in Massachusetts?

Yes. Gestational surrogacy is legal in Massachusetts and is specifically regulated under the Massachusetts Parentage Act. The law sets requirements for surrogacy agreements and provides a clear process for establishing the intended parents’ legal parentage.

Is Traditional Surrogacy Legal in Massachusetts?

Yes. Massachusetts law recognizes genetic surrogacy, also known as traditional surrogacy, but it has additional legal requirements. Unlike a gestational surrogacy agreement, a genetic surrogacy agreement must be validated by a Probate and Family Court before assisted reproduction related to the agreement begins.

Because the surrogate is genetically related to the child, genetic surrogacy involves additional legal considerations and is used far less often than gestational surrogacy.

Is Compensated Surrogacy Legal in Massachusetts?

Yes. Compensated surrogacy is legal in Massachusetts. Under the Massachusetts Parentage Act, a surrogacy agreement may provide for compensation and reasonable expenses. The intended parents are also responsible for surrogacy-related expenses that are not covered by insurance, as provided by law and the agreement. These expenses include the following:

• 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

Massachusetts law now sets specific requirements for an enforceable surrogacy agreement.

The agreement must be in writing and signed before embryo or gamete transfer. The parties must meet the state’s eligibility requirements, signatures must be notarized, and the surrogate and intended parent or parents must have independent legal representation. At least one party must also be a Massachusetts resident, or, if no party lives in Massachusetts, at least one qualifying medical evaluation, procedure, or mental health consultation must take place in the state.

The agreement must also address parentage, financial responsibilities and expenses, the surrogate’s health and medical decision-making rights, and each party’s right to terminate the agreement where permitted by law.

Determining Legal Parentage in Massachusetts

Massachusetts law provides a clear path for establishing parentage in gestational surrogacy. Under a compliant agreement, the intended parent or parents become the child’s legal parents by operation of law when the child is born.

A party to the surrogacy agreement may also ask the court for a judgment of parentage before, on, or after the birth. That order can confirm the intended parents’ legal parentage and direct that they be listed on the child’s birth record.