Mass. Gen. Laws ch. 209C, sec. 28M — MA Code / Part II / Title III / Chapter 209C / Section 28M
Birth of a child conceived by assisted reproduction under genetic surrogacy agreement; notice to court; clinical or laboratory error; genetic testing to determine the genetic parentage of the child
Status: in_force

Section 28M. (a) Upon the birth of a child conceived by assisted reproduction under a genetic surrogacy agreement validated pursuant to section 28K or 28N, each intended parent shall be a parent of the resulting child. (b) Upon the birth of a child conceived by assisted reproduction under a genetic surrogacy agreement validated under section 28K or 28N, the intended parent or parents shall file a notice with the court that validated said agreement that a child has been born as a result of assisted reproduction under that agreement. Upon receiving such notice, the court shall immediately, or as soon as practicable, issue an order without notice and hearing: (i) declaring that any intended parent or parents is a parent of a child conceived by assisted reproduction under the agreement and ordering that parental rights and duties vest exclusively in any intended parent; (ii) declaring that the genetic surrogate and their spouse or former spouse, if any, are not parents of the child; (iii) designating the contents of the birth certificate in accordance with chapter 46 and directing the department of public health to designate any intended parent as a parent of the child; (iv) to protect the privacy of the child and the parties, declaring that the court record and related pleadings be impounded in accordance with section 28I; (v) if necessary, ordering that the child be surrendered to the intended parent or parents; and (vi) for other relief the court determines necessary and proper. (c) Except as otherwise provided in subsection (d) or section 28O, if, due to a clinical or laboratory error, a child conceived by assisted reproduction under a genetic surrogacy agreement is not genetically related to an intended parent or a donor who donated to the intended parent or parents, each intended parent and not the genetic surrogate and their spouse or former spouse, if any, shall be a parent of the child. (d) If a child born to a genetic surrogate is alleged not to have been conceived by assisted reproduction, the court may, upon finding sufficient evidence, order genetic testing to determine the genetic parentage of the child. If the child was not conceived by assisted reproduction and the second source of genetic material is the spouse of the genetic surrogate, then the surrogate and the spouse shall be found to be the parents of the child. If the second genetic source is a person other than the spouse of the surrogate, then parentage shall be determined as provided in sections 1 to 27, inclusive; provided, however, that if the second genetic source is an intended parent, the court, in its sole discretion, shall determine parentage under sections 1 to 27, inclusive. Unless the genetic surrogacy agreement provides otherwise, the genetic surrogate shall not be entitled to any non-expense related compensation paid for acting as a surrogate if the child was not conceived by assisted reproduction. (e) If an intended parent fails to file the notice required under subsection (b), the person acting as genetic surrogate may file with the court, not later than 60 days after the birth of a child conceived by assisted reproduction under the genetic surrogacy agreement, notice that the child has been born to the genetic surrogate. On proof of a court order issued under sections 28K or 28N validating the agreement, the court shall order that each intended parent is a parent of the child.

Section 28M. (a) Upon the birth of a child conceived by assisted reproduction under a genetic surrogacy agreement validated pursuant to section 28K or 28N, each intended parent shall be a parent of the resulting child.

(b) Upon the birth of a child conceived by assisted reproduction under a genetic surrogacy agreement validated under section 28K or 28N, the intended parent or parents shall file a notice with the court that validated said agreement that a child has been born as a result of assisted reproduction under that agreement. Upon receiving such notice, the court shall immediately, or as soon as practicable, issue an order without notice and hearing:

(i) declaring that any intended parent or parents is a parent of a child conceived by assisted reproduction under the agreement and ordering that parental rights and duties vest exclusively in any intended parent;

(ii) declaring that the genetic surrogate and their spouse or former spouse, if any, are not parents of the child;

(iii) designating the contents of the birth certificate in accordance with chapter 46 and directing the department of public health to designate any intended parent as a parent of the child;

(iv) to protect the privacy of the child and the parties, declaring that the court record and related pleadings be impounded in accordance with section 28I;

(v) if necessary, ordering that the child be surrendered to the intended parent or parents; and

(vi) for other relief the court determines necessary and proper.

(c) Except as otherwise provided in subsection (d) or section 28O, if, due to a clinical or laboratory error, a child conceived by assisted reproduction under a genetic surrogacy agreement is not genetically related to an intended parent or a donor who donated to the intended parent or parents, each intended parent and not the genetic surrogate and their spouse or former spouse, if any, shall be a parent of the child.

(d) If a child born to a genetic surrogate is alleged not to have been conceived by assisted reproduction, the court may, upon finding sufficient evidence, order genetic testing to determine the genetic parentage of the child. If the child was not conceived by assisted reproduction and the second source of genetic material is the spouse of the genetic surrogate, then the surrogate and the spouse shall be found to be the parents of the child. If the second genetic source is a person other than the spouse of the surrogate, then parentage shall be determined as provided in sections 1 to 27, inclusive; provided, however, that if the second genetic source is an intended parent, the court, in its sole discretion, shall determine parentage under sections 1 to 27, inclusive. Unless the genetic surrogacy agreement provides otherwise, the genetic surrogate shall not be entitled to any non-expense related compensation paid for acting as a surrogate if the child was not conceived by assisted reproduction.

(e) If an intended parent fails to file the notice required under subsection (b), the person acting as genetic surrogate may file with the court, not later than 60 days after the birth of a child conceived by assisted reproduction under the genetic surrogacy agreement, notice that the child has been born to the genetic surrogate. On proof of a court order issued under sections 28K or 28N validating the agreement, the court shall order that each intended parent is a parent of the child.