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.

Table of Contents

Massachusetts laws

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

MGL c. 210 § 2  
Written consent by certain persons required for adoption

MGL c.210 § 11A  
Penalties for advertisement of children offered for adoption

MGL c. 215 § 6  
Probate and Family Court has jurisdiction in matters of general equity

Selected case law

Adoption of Daphne, 484 Mass. 421 (2020)
Discusses the Massachusetts court's jurisdiction in an adoption by the biological father when the gestational carrier lived in Massachusetts, but the father lived in another country, and had taken the baby to live abroad with him. 

Culliton v. Beth Israel Deaconess, 435 Mass. 285 (2001)
Held that the Probate & Family Court has the authority to review the merits of a case where the genetic parents sought a pre-birth declaration of parentage for their twins, who were delivered by a surrogate mother. The court stressed the importance of establishing the rights and responsibilities of parentage as soon as is practically possible to prevent legal controversies and furnish children with a measure of stability.

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

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

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. Chapter Surrogate parenting.

Lesbian, gay, bisexual and transgender family law, NOLO, 2018. 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

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



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Last updated: April 15, 2022