Mass. Gen. Laws ch. 209C, sec. 28C — MA Code / Part II / Title III / Chapter 209C / Section 28C
Surrogacy agreement; required terms; expenses; surrogate health and welfare decisions; termination of agreement; assignability of rights
Status: in_force

Section 28C. (a) A surrogacy agreement is enforceable only if it contains the following terms: (i) the surrogate: (A) shall undergo assisted reproduction and attempt to carry and give birth to any resulting child; (B) except as otherwise provided in sections 28I, 28M and 28N, shall have no claim to parentage of any resulting child; and (C) acknowledges the exclusive parentage of the intended parent or parents of all resulting children; (ii) if the surrogate is married, their spouse: (A) acknowledges and agrees to abide by all obligations imposed on the surrogate by the terms of the surrogacy agreement; (B) except as otherwise provided in sections 28I, 28M and 28N, shall have no claim to parentage of any resulting child; and (C) acknowledges the exclusive parentage of the intended parent or parents of all resulting children; and (iii) the intended parent or, if there are more than 1 intended parents, each parent jointly and severally: (A) except as otherwise provided in sections 28G, 28J, 28M and 28N, agree to be the exclusive parent or parents and accept parental rights and responsibilities of all resulting children regardless of the number of children born or the gender or condition of each child; and (B) except as otherwise provided in sections 28G, 28J, 28M and 28N, agree to assume responsibility for the financial support of all resulting children immediately upon the birth of the children regardless of the number of children born or the gender or condition of each child. (b) The intended parent or parents shall pay for all surrogacy-related expenses of the surrogate, including expenses for healthcare provided for assisted reproduction, prenatal care, labor and delivery and the medical expenses of all resulting children, that are not covered by insurance; provided, however, that this subsection shall not be construed to supplant any health insurance coverage that is otherwise available to the surrogate or an intended parent for the coverage of healthcare costs; provided further, that this subsection shall not change the health insurance coverage of the surrogate or the responsibility of the insurance company to pay benefits under a policy that covers a surrogate. (c) The surrogacy agreement shall not infringe on the rights of the surrogate to make all health and welfare decisions regarding the surrogate, the surrogate's body and the surrogate's pregnancy throughout the duration of the surrogacy agreement, including during attempts to become pregnant, pregnancy, labor and delivery and post-partum. The surrogacy agreement shall not infringe upon the right of the surrogate to autonomy in medical decision making, including, but not limited to, whether to consent to a caesarean section and whether to undergo multiple embryo transfers. Except as otherwise provided by law, any written or oral agreement purporting to waive or limit these rights shall be void as against public policy. (d) The surrogacy agreement shall include information about the right of each party to terminate the surrogacy agreement. (e) Rights created under a surrogacy agreement shall not be assignable and there shall be no third-party beneficiary to a surrogacy agreement other than the resulting child of the surrogacy. (f) A surrogacy agreement may provide for: (i) payment of consideration and reasonable expenses; and (ii) reimbursement of specific expenses if the agreement is terminated pursuant to this chapter.

Section 28C. (a) A surrogacy agreement is enforceable only if it contains the following terms:

(i) the surrogate: (A) shall undergo assisted reproduction and attempt to carry and give birth to any resulting child; (B) except as otherwise provided in sections 28I, 28M and 28N, shall have no claim to parentage of any resulting child; and (C) acknowledges the exclusive parentage of the intended parent or parents of all resulting children;

(ii) if the surrogate is married, their spouse: (A) acknowledges and agrees to abide by all obligations imposed on the surrogate by the terms of the surrogacy agreement; (B) except as otherwise provided in sections 28I, 28M and 28N, shall have no claim to parentage of any resulting child; and (C) acknowledges the exclusive parentage of the intended parent or parents of all resulting children; and

(iii) the intended parent or, if there are more than 1 intended parents, each parent jointly and severally: (A) except as otherwise provided in sections 28G, 28J, 28M and 28N, agree to be the exclusive parent or parents and accept parental rights and responsibilities of all resulting children regardless of the number of children born or the gender or condition of each child; and (B) except as otherwise provided in sections 28G, 28J, 28M and 28N, agree to assume responsibility for the financial support of all resulting children immediately upon the birth of the children regardless of the number of children born or the gender or condition of each child.

(b) The intended parent or parents shall pay for all surrogacy-related expenses of the surrogate, including expenses for healthcare provided for assisted reproduction, prenatal care, labor and delivery and the medical expenses of all resulting children, that are not covered by insurance; provided, however, that this subsection shall not be construed to supplant any health insurance coverage that is otherwise available to the surrogate or an intended parent for the coverage of healthcare costs; provided further, that this subsection shall not change the health insurance coverage of the surrogate or the responsibility of the insurance company to pay benefits under a policy that covers a surrogate.

(c) The surrogacy agreement shall not infringe on the rights of the surrogate to make all health and welfare decisions regarding the surrogate, the surrogate's body and the surrogate's pregnancy throughout the duration of the surrogacy agreement, including during attempts to become pregnant, pregnancy, labor and delivery and post-partum. The surrogacy agreement shall not infringe upon the right of the surrogate to autonomy in medical decision making, including, but not limited to, whether to consent to a caesarean section and whether to undergo multiple embryo transfers. Except as otherwise provided by law, any written or oral agreement purporting to waive or limit these rights shall be void as against public policy.

(d) The surrogacy agreement shall include information about the right of each party to terminate the surrogacy agreement.

(e) Rights created under a surrogacy agreement shall not be assignable and there shall be no third-party beneficiary to a surrogacy agreement other than the resulting child of the surrogacy.

(f) A surrogacy agreement may provide for: (i) payment of consideration and reasonable expenses; and (ii) reimbursement of specific expenses if the agreement is terminated pursuant to this chapter.