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Gestational Surrogacy in Massachusetts

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Massachusetts Surrogacy Laws

Gestational Surrogacy is permitted by the Massachusetts Parentage Act, enacted in 2024, effective January 1, 2025 (G.L. c. 209(c), Section 28 et seq.).

 

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Pre-birth Parentage Orders

Do courts grant pre-birth parentage orders?

  • Yes

Can both Intended Parents be declared the legal parents in a pre-birth order if at least one parent is genetically related to the child?

  • Married heterosexual couple using own egg and own sperm: Yes
  • Married heterosexual couple using an egg donor or sperm donor: Yes
  • Unmarried heterosexual couple using own egg and own sperm: Yes
  • Unmarried heterosexual couple using an egg donor or sperm donor: Yes
  • Same-sex couple using an egg donor or sperm donor: Yes
  • Single parent using own egg or sperm: Yes

Can both Intended Parents be declared the legal parents in a pre-birth order if no parent is genetically related to the child?

  • Married heterosexual couple: Yes
  • Unmarried heterosexual couple: Yes
  • Same-sex couple: Yes
  • Single parent: Yes

What are the bases for venue?

  • The county of the Gestational Carrier’s residence, the county of the Intended Parents’ residence, or the location of the anticipated delivery hospital.

Do results vary by venue?

  • No. They shouldn’t under the new statute, but as with anything, there will be a learning curve for the courts/judges.

Is a hearing required to obtain a pre-birth order?

  • No, unless the court requires additional information which cannot reasonably be ascertained without a hearing (G.L. c. 209(C), Sec. 28I(d)).

Is a pre-birth order possible in Massachusetts based on a Gestational Carrier’s plan to deliver in Massachusetts, if no party lives in Massachusetts?

  • Yes

Will Massachusetts Vital Records honor a pre-birth order from another state?

  • Yes

What is the typical time frame to obtain a birth certificate after delivery?

  • 3-5 business days, except Boston (1-2 weeks), if it is picked up at the city/town hall where the birth occurred. Efforts can be made to expedite the process.

Same-Sex Couple

How are same-sex parents named on the final birth certificate?

  • Parent and Parent (all birth certificates say “parent/parent” regardless of the gender of the parents).

Can an international same-sex male couple obtain an initial birth certificate naming the biological father and Gestational Carrier?

  • Yes, but a Voluntary Acknowledgment of Parentage is required.

Can they subsequently obtain a birth certificate naming only the biological father or both fathers, with no mention of the Gestational Carrier?

  • Yes, with a post-birth parentage order or post-birth adoption.

Can the non-biological parent in a same-sex couple obtain a second parent adoption based solely on the fact that the child was born in Massachusetts (i.e., neither of the Intended Parents lives in Massachusetts)?

  • No

Second Parent & Stepparent Adoptions Massachusetts Residents

Note: This situation typically arises if the child is born outside the state.  The parents then return to Massachusetts to obtain a second parent adoption or stepparent adoption in Massachusetts.

Will courts in Massachusetts grant second parent adoptions or stepparent adoptions to heterosexual couples living in Massachusetts?

  • Yes

Does the couple need to be married?

  • No

Will courts in Massachusetts grant second parent adoptions or stepparent adoptions to same-sex couples living in Massachusetts?

  • Yes

Does the couple need to be married?

  • No

Egg, Sperm, & Embryo Donation

Is there a statute or published case law that addresses the rights of a donor over the resulting eggs, sperm, embryo or child?

Yes, c. 209(C), Section 1A and Section 27(c) of the new statute states: “A donor is not a parent of a child conceived through assisted reproduction by virtue of the donor’s genetic connection.”

Traditional Surrogacy in Massachusetts

In Massachusetts, Traditional Surrogacy Agreements are referred to as Genetic Surrogacy (G.L. c. 209(C), Sec. 28K). If the Intended Parents go through the proper pre-assisted reproduction procedure “validation” process, wherein the court MUST validate the genetic surrogacy agreement PRIOR to commencing any assisted reproduction procedure (other than medical screening) (in the proper venue of the Probate & Family Court Department) then, after the child’s birth, the intended parents become the legal parents and the court will issue a parentage order recognizing them as the parents.

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State Law Information Provided By The Following Attorneys Practicing Reproductive Law In This State:

Other Attorneys Practicing Reproductive Law In This State:

Michael B. Grant, Attorney at Law
MBGESQ@aol.com
East Greenwich, RI
(401) 219-0400

Other Attorneys Practicing Reproductive Law In This State:

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