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GESTATIONAL SURROGACY IN MASSACHUSETTS

Gestational Surrogacy is permitted by case law 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).

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, but the couple must sign a Voluntary Acknowledgement of Paternity post-birth.
  • Unmarried heterosexual couple using an egg donor or sperm donor: Same as above
  • Same-sex couple using an egg donor or sperm donor: Yes, but the couple must be married.
  • 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: No
  • Unmarried heterosexual couple: No
  • Same-sex couple: No
  • Single parent: No

 
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 delivery hospital.
 
Do results vary by venue?  No.
 
Is a hearing required to obtain a pre-birth order? Sometimes, but it is at the judge’s discretion. Even when there is a hearing, the parties are not always required to attend.
 
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, if it complies with Massachusetts’s requirements, e.g., Vital Records will not honor a pre-birth order from another state if the Intended Parents have no genetic relation to the child.
 
What is the typical time frame to obtain a birth certificate after delivery?  1- 2 weeks, depending on the town, if it is picked up at town hall. Efforts can be made to expedite the process.

Same-Sex Couples

How are same-sex parents named on the final birth certificate?  Parent and Parent   
 
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 Paternity 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 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)?  Yes, but it depends on the judge. It must be filed in the county where the Gestational Carrier resides.

SECOND PARENT & STEPPARENT ADOPTIONS FOR MASSACHUSETTS RESIDENTS

Note: This situation typically arises if the child is born outside of 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 AND SPERM 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. Mass. G.L. c. 46, § 4B states, “Any child born to a married woman as a result of artificial insemination with the consent of her husband, shall be considered the legitimate child of the mother and such husband.”
 
If the statute only refers to sperm donors, is there a case law interpreting this statute to provide the same protection in the egg donor context? Not specifically.  However, Goodridge v. Dept. of Public Health (2003) stands for the principle that, pursuant to the Massachusetts Constitution, all statutes must be read as gender neutral.

TRADITIONAL SURROGACY IN MASSACHUSETTS

In Massachusetts, Traditional Surrogacy agreements are very restrictive and not commonly enforced by the courts. Although a Traditional Surrogate must wait at least four days after the delivery of the child to give her consent to relinquish her rights and the placement of the child, she can place the child immediately with the Intended Parents. If the Intended Father is not biologically related to the child, then a full-blown adoption must be completed.

State law information provided by the following attorneys practicing Reproductive Law in this state:
 
Kathleen Delisle, Robert Nichols, Leslie Lightholder
contact@ndllaw.com
(508) 460-0500
 
Melissa Brisman
melissab@reproductivepossibilities.com
(201) 505-0099
 
John Weltman
john@circlesurrogacy.com
(617) 439-9900
 
Other attorneys practicing Reproductive Law in this state:
 
Suzann Ordile
sordile@ordilelaw.com
www.ordilelaw.com
 
Catherine Tucker
catherine@tuckerlegal.com
www.tuckerlegal.com

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