Massachusetts law about surrogate parenting

A compilation of laws and cases on surrogate mothers, including both traditional surrogates, who use their own egg and carry a baby for another, and gestational surrogates, who carry a baby created from the egg of another woman.

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Table of Contents

Massachusetts laws

MGL c. 46, § 4B Artificial insemination 
Legitimacy of child conceived by artificial insemination.

MGL c. 210, § 2 Written consent by certain persons; form of consent; identification of father 
MGL c. 210 concerns “Adoption of Children and Change of Names.”

MGL c.210, § 11A Adoption services offered by certain persons or agencies; penalties
Penalties for advertisement of children offered for adoption.

MGL c. 215, § 6 Courts and their jurisdictions; equity jurisdiction

Selected case law

Adoption of Daphne, 484 Mass. 421 (2020)
“Because of the unavailability of a prebirth determination, in the circumstances presented here, we are forced to decide this case under the adoption statute.”

Culliton v. Beth Israel Deaconess, 435 Mass. 285 (2001)
“[T]he adoption statute was not intended to resolve parentage issues arising from gestational surrogacy agreements. . . We strongly urge the Legislature to consider a more expedient process for obtaining postbirth judgements of parentage in the context of gestational surrogacy.”

Guardianship of Keanu, 100 Mass. App. Ct. 64 (2021)
"Although the SJC concluded more than twenty years ago that surrogacy contracts may be lawful, ... the details of what such contracts require, and when they may be used, remain largely undefined. This case highlights the need for clarity and predictability with respect to these areas of the law, so that the risks of instability and the costs attendant on surrogacy may be reduced in order to protect children born through surrogacy, as well as the intended and biological parents (and, where relevant, the gestational carrier)." 

Hodas v. Morin, 442 Mass. 544 (2004)
Court ruled the Massachusetts Probate and Family Court had jurisdiction to issue a pre-birth order even though the gestational surrogate mother and her husband as well as the intended parents whose egg and sperm were used to create the pregnancy lived in other states. Even though none of the contracting parties lived in Massachusetts, where the agreement specified that Massachusetts law would control and the birth was to take place in a Massachusetts hospital, jurisdiction existed in the probate court.

R.R. v. M.H. & Another, 426 Mass. 501 (1998) 
Surrogate agreement was unenforceable because mother's consent to surrender custody of child to the biological father was given before the fourth day after the child's birth and it was made in consideration of monetary payment which was above the mother's pregnancy-related expenses.

Web sources

“Massachusetts Parentage Act legislation overview”, The Massachusetts Parentage Act Coalition, 2021.
“We are the only New England State without any statutory protections for children born through surrogacy.”

What is surrogate parenthood?, Findlaw.
“This article provides a general overview of surrogate parenthood, including applicable laws.”

“What you need to know about surrogacy in Massachusetts”, American Surrogacy, 2022.
“While there are no surrogacy laws in Massachusetts that prohibit traditional surrogacy, this surrogacy is often treated as adoption under state law.”

Print sources

ABA Guide to assisted reproduction techniques, legal issues and pathways to success, ABA, 2016. Chapter 4: The surrogacy process. Although not a Massachusetts specific resource, it does provide a good overview of the process. 

Adoption and reproductive technology law in Massachusetts, 2nd ed., MCLE, 2018.

Family law and practice: with forms, 4th ed. (Mass Practice v.1-3), Thomson Reuters, 2013 with supplement. § 26:6 Surrogacy arrangements.

Lesbian, gay, bisexual and transgender family law, Courtney G. Joslin, Thomson Reuters, annual. Chapter 4, “Surrogacy.”

LexisNexis practice guide: Massachusetts family law, West, 2021. Chapter 11: Surrogacy and gestational agreements.

"How to not break the maternity tie: recognizing the rights of gestational carriers & a proposal for shared legal motherhood," Massachusetts Family Law Journal October-November 2005, Vol. 23 Issue 5, p.133-149.

"Protectionism and freedom to contract: the erosion of female autonomy in surrogacy decisions," 36 Suffolk University Law Review 717 (2003).

Uniform laws annotated, Vol. 9B, West Publishing Co., 2001 with supplement, vol. 9B p. 299 "Uniform Parentage Act (2000)", Art. 7 & Art. 8. The Uniform Parentage Act has not been adopted in Massachusetts.

"Validity and Construction of Surrogate Parenting Agreement," 77 ALR4th 70.

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Last updated: October 31, 2022
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