What You Need to Know About Surrogacy in Massachusetts

What You Need to Know About Surrogacy in Massachusetts

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Massachusetts Surrogacy Laws and Information

What are the surrogacy laws in Massachusetts?

It may surprise you to know that, like many states, Massachusetts has no surrogacy laws created and approved by the state legislature. Instead, surrogacy in Massachusetts is a process based on three published surrogacy cases, the guidance of experienced surrogacy professionals and legal precedents set by surrogacy attorneys in Massachusetts.

Before you begin your family-building journey in this state, it’s important that you learn as much as you can about surrogacy laws in Massachusetts and how they may apply to your situation. The specialists at American Surrogacy can always explain the general process of surrogacy in Massachusetts and refer you to a trusted local attorney for legal representation.

To get started, find out some basic information about surrogacy in Massachusetts below.

Q: Is surrogacy legal in Massachusetts?

A: While there are no surrogacy laws in Massachusetts, the Massachusetts Supreme Court has permitted surrogacy in several cases: Hodas v. Morin, Culliton v. Beth Israel Deaconess Med. Ctr., and R.R. v. M.H.

Consequently, surrogacy is legal in Massachusetts for intended parents and surrogates today. However, because of the legal complexities of the process, it’s important that all parties to a surrogacy agreement work closely with an experienced Massachusetts surrogacy attorney to ensure their rights and interests are protected.

Q: Is compensated surrogacy legal in Massachusetts?

A: Yes. The published case surrogacy laws in Massachusetts do not address the legality of compensation in a surrogacy agreement. Therefore, surrogates can receive a base compensation for their services in this state.

Q: Is traditional surrogacy legal in Massachusetts?

A: While there are no surrogacy laws in Massachusetts that prohibit traditional surrogacy, 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.

Q: What does a surrogacy agreement in Massachusetts cover, and how does the legal process work?

A: Because there are no surrogacy laws in Massachusetts regulating the drafting of a surrogacy contract, this legal process should, in theory, be the same as the process in any other state. You will need an experienced surrogacy attorney to create this document, and your surrogacy partner will need a separate attorney, as well.

You and your attorney will discuss your surrogacy goals and preferences and negotiate them with your surrogacy partner to create a contract that addresses:

  • Rights and responsibilities of each party
  • Potential risks and liabilities for each party
  • Surrogate compensation and other financial information
  • Contact expectations before, during and after the surrogacy process
  • Plans for delivery and establishing parental rights
  • And more

After your Massachusetts surrogacy contract is finalized and signed, you and your surrogacy partner can begin the medical process of surrogacy.

Q: Are surrogacy contracts (whether compensated or altruistic) enforceable in Massachusetts?

A: The enforceability of Massachusetts surrogacy contracts is legally complicated. One 1998 surrogacy case law states that compensated, traditional surrogacy contracts are not enforceable. However, other published case laws do not address the enforceability of gestational surrogacy contracts in Massachusetts.

Please speak with an experienced Massachusetts surrogacy lawyer to learn more about this legal issue.

Q: What are the surrogacy laws in Massachusetts on parentage orders?

A: Massachusetts surrogacy courts grant pre-birth parentage orders to couples (married or unmarried) and individuals who have a genetic link to the child born via surrogacy. As long as one member of a couple is related to the child, they can receive a pre-birth order.

However, if the couple is unmarried, they must sign a voluntary acknowledgement of paternity after birth.

If there is no genetic relationship between any intended parents and the child born via surrogacy in Massachusetts, a pre-birth order cannot be obtained. Speak with a local surrogacy attorney if this is your situation to learn more.

Q: Are there any particular laws for parents outside the U.S. who complete a surrogacy in Massachusetts?

A: No. International intended parents should, in theory, be subject to the same laws in Massachusetts regarding parentage as any domestic intended parents.

Q: When do intended parents need to complete an adoption after birth? 

A: Intended parents typically need to complete an adoption after birth if neither parent in a couple is genetically related to the child born via surrogacy in Massachusetts. Otherwise, intended parents can either obtain a pre-birth order or complete a voluntary acknowledgement of paternity if there is a genetic connection.

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. Typically, unmarried intended parents will utilize a second-parent adoption, while married intended parents will utilize a stepparent adoption in Massachusetts.

Because the situations regarding establishing parental rights can be complicated, please speak with a surrogacy attorney to determine whether one of these adoption processes is necessary for your circumstances.

Q: What happens in cases where intended parents use a donor egg, sperm or embryo?

A: In most cases of Maryland surrogacies with a donor gamete, intended parents 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. However, speak with a local surrogacy attorney to find out what legal steps will be necessary for you.

Q: Are there any additional laws impacting same-sex surrogacy in Massachusetts?

A: No. LGBT intended parents in Massachusetts are treated the same under state law as heteronormative intended parents.

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If you are considering surrogacy in Massachusetts, American Surrogacy is here to help. Our agency welcomes intended parents and surrogates from this state, and we can guide you through every step of this family-building process.

To learn more about our agency program, including the case management and support services we offer, please contact us today at 1-800-875-2229(BABY).

This article is not intended to be and should not be taken as legal advice. American Surrogacy makes no guarantee the information presented in this article is accurate and up-to-date. Please speak with a surrogacy attorney in Massachusetts for legal guidance through your Massachusetts surrogacy.