Mass. Gen. Laws ch. 209C, sec. 28J — MA Code / Part II / Title III / Chapter 209C / Section 28J
Gestational surrogacy agreement; enforceability; remedies for breach; specific performance;
Status: in_force

Section 28J. (a) A gestational surrogacy agreement that substantially complies with sections 28A, 28B and 28C shall be enforceable. (b) If a child was conceived by assisted reproduction under a gestational surrogacy agreement that does not substantially comply with sections 28A, 28B and 28C, the court shall determine the rights and duties of the parties to the agreement consistent with the intent of the parties at the time of execution of the agreement. Each party to the agreement and any person who at the time of the execution of the agreement was a spouse of a party to the agreement shall have standing to commence a proceeding to adjudicate an issue related to the enforcement of the agreement. (c) Except as expressly provided in a gestational surrogacy agreement or subsection (d) or (e), if the agreement is breached by the gestational surrogate or 1 or more intended parents, the non-breaching party shall be entitled to the remedies available at law or in equity. (d) Specific performance shall not be an available remedy for breach by a gestational surrogate of a provision in an agreement that the gestational surrogate become pregnant, terminate or not terminate a pregnancy or submit to medical procedures. (e) Except as otherwise provided in subsection (d), if an intended parent is determined to be a parent of the child pursuant to this chapter, specific performance shall be a remedy available for: (i) breach of the agreement by a gestational surrogate which prevents the intended parent from exercising, immediately on birth of the child, the full rights of parentage; or (ii) breach by the intended parent which prevents the intended parent's acceptance, immediately on birth of the child conceived by assisted reproduction under the agreement, of the duties of parentage.

Section 28J. (a) A gestational surrogacy agreement that substantially complies with sections 28A, 28B and 28C shall be enforceable.

(b) If a child was conceived by assisted reproduction under a gestational surrogacy agreement that does not substantially comply with sections 28A, 28B and 28C, the court shall determine the rights and duties of the parties to the agreement consistent with the intent of the parties at the time of execution of the agreement. Each party to the agreement and any person who at the time of the execution of the agreement was a spouse of a party to the agreement shall have standing to commence a proceeding to adjudicate an issue related to the enforcement of the agreement.

(c) Except as expressly provided in a gestational surrogacy agreement or subsection (d) or (e), if the agreement is breached by the gestational surrogate or 1 or more intended parents, the non-breaching party shall be entitled to the remedies available at law or in equity.

(d) Specific performance shall not be an available remedy for breach by a gestational surrogate of a provision in an agreement that the gestational surrogate become pregnant, terminate or not terminate a pregnancy or submit to medical procedures.

(e) Except as otherwise provided in subsection (d), if an intended parent is determined to be a parent of the child pursuant to this chapter, specific performance shall be a remedy available for: (i) breach of the agreement by a gestational surrogate which prevents the intended parent from exercising, immediately on birth of the child, the full rights of parentage; or (ii) breach by the intended parent which prevents the intended parent's acceptance, immediately on birth of the child conceived by assisted reproduction under the agreement, of the duties of parentage.