GESTATIONAL SURROGACY IN MINNESOTA
Gestational Surrogacy is permitted because no statute or published case law prohibits it.
PRE-BIRTH PARENTAGE ORDERS
Do courts grant pre-birth parentage orders? Many Minnesota courts will grant pre-birth Declaratory Judgments establishing the parentage of the intended parents, although not all will do so. Those courts that will not grant pre-birth orders establishing parentage will allow pleadings to be filed pre-birth under the Parentage Act, but parentage is not established in those courts until the birth of the child. Minnesota does not have a statute that governs surrogacy or that outlines parentage procedures following surrogacy or other assisted reproduction.
Can both Intended Parents be declared the legal parents in either a pre-birth or post-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 egg donor or sperm donor: Varies by county and by court. Some courts will allow pre-birth orders establishing the parentage of both intended parents of a child regardless of the child’s genetic ties to either intended parent. Other courts will only allow the genetic parent to be declared to be the parent and will require the non-genetic intended parent to establish his/her parentage through a stepparent adoption.
- Unmarried heterosexual couple using own egg and own sperm: Same as above.
- Unmarried heterosexual couple using egg donor or sperm donor: Same as above.
- Same-sex couple using egg donor or sperm donor: Same as above.
- Single parent using own egg or sperm: Same as above.
Can both Intended Parents be declared the legal parents in a parentage order if no parent is genetically related to the child?
- Married heterosexual couple: Varies by county and by court.
- Unmarried heterosexual couple: Same as above
- Same-sex couple: Same as above.
- Single parent: Same as above.
What are the bases for venue? The county of residence of any party.
Do results vary by venue? Yes
If yes, are motions to waive venue accepted? Varies by county.
Is a hearing required to obtain a parentage order? Varies by judge, as does who must attend.
Is a pre-birth order possible in Minnesota based on a Gestational Carrier’s plan to deliver in Minnesota, if no party lives in Minnesota? No
Will Minnesota Vital Records honor a pre-birth order from another state? Yes
What is the typical time frame to obtain a birth certificate after delivery? Varies
SAME SEX COUPLE
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
Can they subsequently obtain a birth certificate naming only the biological father or both fathers, with no mention of the Gestational Carrier? Yes
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 Minnesota? Yes
SECOND PARENT & STEPPARENT ADOPTIONS FOR MINNESOTA RESIDENTS
Note: This situation typically arises if the child is born outside of the state. The parents then return to Minnesota to obtain a second parent adoption or stepparent adoption in Minnesota.
Will courts in Minnesota grant second parent adoptions or stepparent adoptions to heterosexual couples living in Minnesota? Yes
Does the couple need to be married? No
Will courts in Minnesota grant second parent adoptions or stepparent adoptions to same-sex couples living in Minnesota? 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: Minn. Stat. §257.62, subd. 5 (c) provides that a donor of genetic material for assisted reproduction for the benefit of a recipient parent, whether sperm of ovum, cannot claim to be the child’s biological or legal parent. Minn. Stat. §257.56 provides that the donor of semen to a licensed physician is not the legal parent unless his semen is used to inseminate his wife.
TRADITIONAL SURROGACY IN MINNESOTA
These cases are not addressed by Minnesota statute and, when they arise, these cases are usually handled via a stepparent adoption after birth in which the traditional surrogate is treated as the birth parent. There is one unpublished opinion of the Minnesota Court of Appeals concluding that a traditional surrogate is the legal mother of the resulting child.
State law information provided by the following attorneys practicing Reproductive Law in this state:
Jody Ollyver DeSmidt, Esq.
Gary A. Debele, Esa.
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