GESTATIONAL SURROGACY LAW IN MASSACHUSETTS

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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.

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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 goes into a surrogacy agreement; therefore there is not a specific set of guidelines for when a judge may uphold the validity of a surrogacy arrangement.  Intended parents and surrogates must work with separate surrogacy attorneys to ensure each parties’ interests and rights are protected.  These attorneys will negotiate an agreement 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

Once the contract has been finalized and signed by both parties, the medical process of surrogacy can begin.  

Determining Legal Parentage in Massachusetts

Massachusetts surrogacy courts grant pre-birth parentage orders when at least one intended parent is genetically related to the child, regardless of marital status and to individuals who have a genetic the child born via surrogacy.   However, if the couple is unmarried, they are required to sign a voluntary acknowledgement of paternity after birth.  No pre-birth order will be granted if neither intended parent is genetically related to the child.

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Same-Sex Surrogacy in Massachusetts

Q: Is Same-Sex Surrogacy Legal in Massachusetts?
A: 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. 

Q: Are There any Additional Laws Impacting Same-Sex Parenting in Massachusetts?
A: No. There are no additional laws impacting same-sex parents in this state.

FAQ’s

Q: Are Surrogacy Contracts (Whether Compensated or Altruistic) Enforceable in Massachusetts?

A: Massachusetts does not have a statutory rule on this so there is not a specific set of guidelines for when a judge may uphold the validity of a surrogacy arrangement.  The enforceability of Massachusetts surrogacy contracts is legally complicated so it’s important to work closely with an experienced surrogacy attorney who can guide you through this process. 

Q: Are There Any Particular Laws for Parents Outside the U.S. Who Complete a Surrogacy in Massachusetts?

A: No.  There are no additional laws for international intended parents that do not apply to domestic intended parents completing a surrogacy in Massachusetts.  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.

Q: When do Intended Parents Need to Complete an Adoption After Birth?

A: If no intended parent is genetically related to the child, a post-birth adoption process must be completed to secure legal parental rights.

Q: Does Massachusetts Allow Second-Parent Adoptions? Who Would Need to Complete a Second-Parent Adoption vs. a Stepparent Adoption (If Applicable)?

A: Yes. Second-parent adoptions are available in Massachusetts to unmarried couples.  

Stepparent adoptions are available to married couples.  

Q: What Happens in Cases Where Intended Parents Use a Donor Egg, Sperm or Embryo?

A: In most cases, when intended parents use a donor egg, sperm or embryo, they can still obtain a pre-birth order (or, if they are unmarried, a post-birth order after a voluntary acknowledgement of paternity)

If neither intended parent is related to the child born via surrogacy, an adoption will usually need to take place to establish the intended parents’ rights. 

REPRODUCTIVE LAW PRACTITIONERS

Rich Vaughn
Los Angeles,CA
Rich@iflg.net
(323) 904-4733

Law Offices of Molly O’Brien
Los Angeles, CA
Molly@yourfertilitylawyer.com
www.yourfertilitylawyer.com

The Law Offices of D. Durand Cook
Culver City, CA
Durand@adoption-option.com
www.adoption-option.com

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