Mass. Gen. Laws ch. 209C, sec. 27 — MA Code / Part II / Title III / Chapter 209C / Section 27
Application; venue; donor; assisted reproduction with the intent to be a parent; proceeding to adjudicate a spouse's parentage of a child born by assisted reproduction; consent; death of person who intends to be a parent; clinical or laboratory error; genetic testing; commencement of proceeding; final judgment; divorce
Status: in_force

Section 27. (a) This section shall apply to nonmarital and marital children. This section shall not apply to the parentage of a child conceived by sexual intercourse or assisted reproduction under a surrogacy agreement under sections 28 to 28P, inclusive. (b) Venue for a proceeding to adjudicate parentage under this section shall be in the county in which: (i) the child resides or was born or is reasonably expected to be born; (ii) any parent or intended parent of the child resides; or (iii) a proceeding has been commenced for administration of the estate of a person who is or may be a parent under this chapter. (c) A donor shall not be a parent of a child conceived through assisted reproduction based on the donor's genetic connection to such child. A donor shall not be entitled to establish the donor's parentage by signing an acknowledgment pursuant to this chapter. A donor shall not be entitled to notice in a proceeding under this chapter. (d) A person who consents to assisted reproduction with the intent to be a parent of the child conceived by said assisted reproduction shall be a parent of the child. Consent to assisted reproduction may be established by: (i) a record signed by the person giving birth to a child conceived by assisted reproduction and by an intended parent before, on or after the birth of the child; or (ii) a finding by the court, by a preponderance of the evidence, that: (A) prior to conception or birth of the child, the parties agreed that they would be parents of the child; or (B) the person who seeks to be a parent of the child, together with the person giving birth, voluntarily participated in and consented to the assisted reproduction that resulted in the conception of the child. (e)(1) Except as provided in paragraph (2), a person who, at the time of a child's birth, is the spouse of the person who gave birth to the child by assisted reproduction may not challenge their own parentage of the child unless, not later than 2 years after the birth of the child, they commence a proceeding to adjudicate their own parentage of the child and the court finds that they did not consent to the assisted reproduction before, on, or after the birth of the child or withdrew consent pursuant to subsection (g). (2) A proceeding to adjudicate a spouse's parentage of a child born by assisted reproduction may be commenced at any time if the court determines that the spouse who is challenging the parentage: (i) neither provided a gamete for, nor consented to, the assisted reproduction; (ii) has not cohabitated with the person who gave birth to the child since the probable time of assisted reproduction; and (iii) never openly held out the child as their child. This subsection shall apply to a spouse's challenge of parentage even if the spouse's marriage is declared invalid after assisted reproduction occurs. (f) A person who consents to assisted reproduction pursuant to subsection (d) may withdraw consent any time before a transfer or implantation of gametes or embryos that results in a pregnancy by giving notice in writing of their withdrawal of consent to the person who agreed to give birth to a child conceived by assisted reproduction and to any clinic or healthcare provider facilitating the assisted reproduction; provided, however, that failure to give notice to a clinic or healthcare provider shall not affect a determination of parentage pursuant to this section. A person who withdraws consent in compliance with this subsection shall not be a parent of the child under this section. (g)(1) If a person who intends to be a parent of a child conceived by assisted reproduction dies during the period between the transfer or implantation of a gamete or embryo and the birth of the child, said person's death shall not preclude the establishment of their parentage of the child if said person would be a parent of the child under this section but for the death. (2) If a person who consented in writing to assisted reproduction by a person who agreed to give birth to a child dies before a transfer or implantation of gametes or embryos, the deceased person shall be a parent of a child conceived by the assisted reproduction if: (i) (A) the person consented in writing that if assisted reproduction were to occur after their death, they would be a parent of the child; or (B) the person's intent to be a parent of a child conceived by assisted reproduction after their death is established by a preponderance of the evidence; and (ii) (A) the embryo is in utero not later than 36 months after the person's death; or (B) the child is born not later than 45 months after the person's death. (h) If, due to a clinical or laboratory error, a child conceived by assisted reproduction is not genetically related to any intended parent or any donor who donated to the intended parent or parents, the intended parent or parents shall be the parent or parents of the child unless otherwise determined by the court. (i) Genetic testing, including genetic marker testing pursuant to section 11, shall not be used to: (i) challenge the parentage of a person who is a parent pursuant to this section; or (ii) establish the parentage of a person who is a donor. (j)(1) A person giving birth or a person who is or claims to be a parent pursuant to this section may commence a proceeding prior to or after the birth of a child by assisted reproduction to obtain a judgment: (i) declaring that the intended parent or parents are the parent or parents of the resulting child immediately upon the birth of the child and ordering that parental rights and responsibilities vest exclusively in the intended parent or parents immediately upon birth of the child; and (ii) designating the contents of the birth certificate and directing the department of public health to designate the intended parent or parents as the parent or parents of the resulting child. (2) A judgment issued by a court pursuant to this subsection before the birth of the resulting child by assisted reproduction shall not take effect until the birth of the resulting child. Nothing in this subsection shall be construed to limit said court's authority to issue orders under any other provision of the General Laws. (3) The commonwealth, the department of public health and the hospital where the child is or is expected to be born shall not be necessary parties to a proceeding under this section. (4) The burden of proof in proceedings pursuant to this section shall be by a preponderance of the evidence. (k) At the request of a party to a proceeding pursuant to this section, the court shall close the proceeding to the general public. Section 13 shall govern segregation of, access to and inspection of complaints, pleadings, papers, documents and reports filed in connection with an action pursuant to this section, and docket entries. (l) The court shall issue a final judgment adjudicating whether a person alleged or claiming to be a parent is the parent of a child in a proceeding pursuant to this section. At the request of a party, and subject to other applicable laws, the court in a proceeding pursuant to this section may order the legal name of the child to be changed. If the final judgment of the court is at variance with the child's birth certificate, the court shall order the department of public health to issue an amended birth certificate that conforms with the final judgment. (m) Custody, parenting time, visitation and child support for a nonmarital child shall be determined in accordance with applicable laws, rules, regulations, orders and guidelines. (n) A spouse who has commenced an action for divorce, or a spouse who has been served with a complaint for divorce, may begin assisted reproduction pursuant to this subsection; provided at least 60 days have elapsed since service of the complaint. In such cases, the spouse that does not begin assisted reproduction pursuant to this subsection shall not be a parent of any child born as a result of the assisted reproduction unless both parties consent in writing to be parents of the child after commencement of the divorce action. A spouse who proceeds with assisted reproduction pursuant to this subsection shall not utilize gametes of their spouse unless their spouse consents in writing to the use of their gametes for assisted reproduction by the spouse after commencement of a divorce action.

Section 27. (a) This section shall apply to nonmarital and marital children. This section shall not apply to the parentage of a child conceived by sexual intercourse or assisted reproduction under a surrogacy agreement under sections 28 to 28P, inclusive.

(b) Venue for a proceeding to adjudicate parentage under this section shall be in the county in which: (i) the child resides or was born or is reasonably expected to be born; (ii) any parent or intended parent of the child resides; or (iii) a proceeding has been commenced for administration of the estate of a person who is or may be a parent under this chapter.

(c) A donor shall not be a parent of a child conceived through assisted reproduction based on the donor's genetic connection to such child. A donor shall not be entitled to establish the donor's parentage by signing an acknowledgment pursuant to this chapter. A donor shall not be entitled to notice in a proceeding under this chapter.

(d) A person who consents to assisted reproduction with the intent to be a parent of the child conceived by said assisted reproduction shall be a parent of the child. Consent to assisted reproduction may be established by: (i) a record signed by the person giving birth to a child conceived by assisted reproduction and by an intended parent before, on or after the birth of the child; or (ii) a finding by the court, by a preponderance of the evidence, that: (A) prior to conception or birth of the child, the parties agreed that they would be parents of the child; or (B) the person who seeks to be a parent of the child, together with the person giving birth, voluntarily participated in and consented to the assisted reproduction that resulted in the conception of the child.

(e)(1) Except as provided in paragraph (2), a person who, at the time of a child's birth, is the spouse of the person who gave birth to the child by assisted reproduction may not challenge their own parentage of the child unless, not later than 2 years after the birth of the child, they commence a proceeding to adjudicate their own parentage of the child and the court finds that they did not consent to the assisted reproduction before, on, or after the birth of the child or withdrew consent pursuant to subsection (g).

(2) A proceeding to adjudicate a spouse's parentage of a child born by assisted reproduction may be commenced at any time if the court determines that the spouse who is challenging the parentage: (i) neither provided a gamete for, nor consented to, the assisted reproduction; (ii) has not cohabitated with the person who gave birth to the child since the probable time of assisted reproduction; and (iii) never openly held out the child as their child. This subsection shall apply to a spouse's challenge of parentage even if the spouse's marriage is declared invalid after assisted reproduction occurs.

(f) A person who consents to assisted reproduction pursuant to subsection (d) may withdraw consent any time before a transfer or implantation of gametes or embryos that results in a pregnancy by giving notice in writing of their withdrawal of consent to the person who agreed to give birth to a child conceived by assisted reproduction and to any clinic or healthcare provider facilitating the assisted reproduction; provided, however, that failure to give notice to a clinic or healthcare provider shall not affect a determination of parentage pursuant to this section. A person who withdraws consent in compliance with this subsection shall not be a parent of the child under this section.

(g)(1) If a person who intends to be a parent of a child conceived by assisted reproduction dies during the period between the transfer or implantation of a gamete or embryo and the birth of the child, said person's death shall not preclude the establishment of their parentage of the child if said person would be a parent of the child under this section but for the death.

(2) If a person who consented in writing to assisted reproduction by a person who agreed to give birth to a child dies before a transfer or implantation of gametes or embryos, the deceased person shall be a parent of a child conceived by the assisted reproduction if: (i) (A) the person consented in writing that if assisted reproduction were to occur after their death, they would be a parent of the child; or (B) the person's intent to be a parent of a child conceived by assisted reproduction after their death is established by a preponderance of the evidence; and (ii) (A) the embryo is in utero not later than 36 months after the person's death; or (B) the child is born not later than 45 months after the person's death.

(h) If, due to a clinical or laboratory error, a child conceived by assisted reproduction is not genetically related to any intended parent or any donor who donated to the intended parent or parents, the intended parent or parents shall be the parent or parents of the child unless otherwise determined by the court.

(i) Genetic testing, including genetic marker testing pursuant to section 11, shall not be used to: (i) challenge the parentage of a person who is a parent pursuant to this section; or (ii) establish the parentage of a person who is a donor.

(j)(1) A person giving birth or a person who is or claims to be a parent pursuant to this section may commence a proceeding prior to or after the birth of a child by assisted reproduction to obtain a judgment: (i) declaring that the intended parent or parents are the parent or parents of the resulting child immediately upon the birth of the child and ordering that parental rights and responsibilities vest exclusively in the intended parent or parents immediately upon birth of the child; and (ii) designating the contents of the birth certificate and directing the department of public health to designate the intended parent or parents as the parent or parents of the resulting child.

(2) A judgment issued by a court pursuant to this subsection before the birth of the resulting child by assisted reproduction shall not take effect until the birth of the resulting child. Nothing in this subsection shall be construed to limit said court's authority to issue orders under any other provision of the General Laws.

(3) The commonwealth, the department of public health and the hospital where the child is or is expected to be born shall not be necessary parties to a proceeding under this section.

(4) The burden of proof in proceedings pursuant to this section shall be by a preponderance of the evidence.

(k) At the request of a party to a proceeding pursuant to this section, the court shall close the proceeding to the general public. Section 13 shall govern segregation of, access to and inspection of complaints, pleadings, papers, documents and reports filed in connection with an action pursuant to this section, and docket entries.

(l) The court shall issue a final judgment adjudicating whether a person alleged or claiming to be a parent is the parent of a child in a proceeding pursuant to this section. At the request of a party, and subject to other applicable laws, the court in a proceeding pursuant to this section may order the legal name of the child to be changed. If the final judgment of the court is at variance with the child's birth certificate, the court shall order the department of public health to issue an amended birth certificate that conforms with the final judgment.

(m) Custody, parenting time, visitation and child support for a nonmarital child shall be determined in accordance with applicable laws, rules, regulations, orders and guidelines.

(n) A spouse who has commenced an action for divorce, or a spouse who has been served with a complaint for divorce, may begin assisted reproduction pursuant to this subsection; provided at least 60 days have elapsed since service of the complaint. In such cases, the spouse that does not begin assisted reproduction pursuant to this subsection shall not be a parent of any child born as a result of the assisted reproduction unless both parties consent in writing to be parents of the child after commencement of the divorce action. A spouse who proceeds with assisted reproduction pursuant to this subsection shall not utilize gametes of their spouse unless their spouse consents in writing to the use of their gametes for assisted reproduction by the spouse after commencement of a divorce action.