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Massachusetts Surrogacy Law
Summary: Massachusetts statutes are silent with regard to surrogacy agreements, but various cases have looked favorably on such agreements, although no case has addressed the issue with regard to lesbian, gay, bisexual and transgender (LGBT) individuals.
Explanation: Massachusetts courts have generally treated surrogacy contracts favorably. In a 1998 case, the surrogate mother in a traditional surrogacy agreement (in which the surrogate mother is the biological contributor of the egg) decided in the sixth month of her pregnancy to keep the child. The Supreme Judicial Court of Massachusetts found that two elements must exist to validate a surrogacy agreement: the surrogate mother's consent to the surrogacy must last until four days after the birth; and the surrogate mother must receive no compensation. The Court found that the following conditions might also be important in deciding the enforceability of a surrogacy agreement: (a) that the surrogate mother's husband give his informed consent to the agreement in advance; (b) that the surrogate mother is an adult and has had at least one successful pregnancy; (c) that the surrogate mother, her husband, and the intended parents have been evaluated for the soundness of their judgment and for their capacity to carry out the agreement; (d) the intended mother be incapable of bearing a child without endangering her health; (e) the intended parents be suitable persons to assume custody of the child; and (f) all parties have the advice of counsel. However, the Court emphasizes that no agreement is per se valid, stating “the mother and father may not . . . make a binding best-interests-of-the-child determination by private agreement. Any custody agreement is subject to a judicial determination of custody based on the best interests of the child.”
The 2001 case of Culliton v. Beth Israel Deaconess Med. Ctr. involved a gestational surrogacy agreement (in which the surrogate mother is not the biological contributor of the egg). In Culliton, the Supreme Judicial Court granted a joint request from the compensated gestational mother, the genetic mother, and the genetic father to have the genetic parents listed as the twins’ parents on their birth certificates. While this further indicates the judiciary’s openness to surrogacy agreements, the Court did not give a ringing endorsement of the enterprise. The Court stated that current state law did not address gestational surrogacy agreements and set forth criteria under which lower courts may review requests for atypical birth-certificate assignations in surrogacy cases. Those criteria are: (a) the plaintiffs are the sole genetic sources; (b) the gestational carrier agrees with the orders sought; (c) no one, including the hospital, has contested the complaint or petition; and (d) by filing the complaint and stipulation for judgment, the plaintiffs agree that they have waived any contradictory provisions in the contract. The Court also noted that the gestational mother being related to one of the genetic parents is a factor that could tilt one of these cases towards a positive disposition.
It is legal in Massachusetts for same-sex couples to jointly adopt, as well as for individuals to adopt the child of their same-sex partner. Moreover, same-sex couples have the right to marry in Massachusetts, so even though the case law only deals with surrogacy agreements for opposite-sex couples, it seems likely that a court would give the exact same treatment to a surrogacy agreement involving LGBT individuals.
http://www.hrc.org/laws_and_elections/946.htm
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We are Interested in Surrogacy- So How Do
We Do This?
In traditional surrogacy (also known as the Straight method) the surrogate is pregnant with her own biological child, but this child was conceived with the intention of relinquishing the child to be raised by others such as the biological father and possibly his spouse or partner. The child may be conceived via sexual intercourse (NI), home artificial insemination using fresh or frozen sperm or impregnated via IUI (intrauterine insemination), or ICI (intra cervical insemination) which is performed at a Fertility Clinic.
Sperm from the male partner of the 'commissioning couple' may be used, or alternatively, sperm from a sperm donor can be used. Donor sperm will, for example, be used if the 'commissioning couple' are both female or where the child is commissioned by a single woman.
To find a sperm donor privately visit FSDW (Free Sperm
Donations Worldwide)
In gestational surrogacy (aka the Host method) the surrogate becomes pregnant via embryo transfer with a child of which she is not the biological mother. She may have made an arrangement to relinquish it to the biological mother or father to raise, or to a parent who is unrelated to the child (e. g. because the child was conceived using egg donation, sperm donation or is the result of a donated embryo). The surrogate mother may be called the gestational carrier. Find a Fertility Clinic
Is there Money Involved in Surrogacy?
Altruistic surrogacy is a situation where the surrogate receives
no financial reward for her pregnancy or the relinquishment of the child (although usually all expenses related to the pregnancy and birth are paid by the intended parents such as medical expenses, maternity clothing, and other related expenses).
Commercial surrogacy is a form of surrogacy in which a gestational carrier is paid to carry a child to maturity in her womb and is usually resorted to by higher income infertile couples who can afford the cost involved or people who save and borrow in order to complete their dream of being parents. This procedure is legal in several countries including in India where due to high international demand and ready availability of poor surrogates it is reaching industry proportions. Commercial surrogacy is sometimes an emotionally charged and contentious ethical issue.
To find out if commercial surrogacy is legal in your country please see the links to the right of this page, or click here and
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Latest Worldwide Surrogacy news
Queensland Passes New Surrogacy Laws - June 2010
Under new laws in effect next year, altruistic surrogacy will no longer be a criminal offence, however, surrogacy for payment or financial benefit will still remain illegal.
Significantly, altruistic surrogacy will not be limited to opposite-sex couples, giving the green light to gay couples who wish to start a family. More from this story
More News About Surrogacy
Worldwide
Legalities of Surrogacy
The legal aspects surrounding surrogacy are very complex and mostly unsettled. There is a default legal assumption in
most countries that the woman giving birth to a child is that child's legal mother. In some jurisdictions the possibility of surrogacy has been allowed
and the intended parents may be recognized as the legal parents from birth.
Many states now issue
pre-birth orders through the courts placing the name(s) of
the intended parent(s) on the birth certificate from the start.
In others the possibility of surrogacy is either not recognized (all contracts specifying different legal parents are void), or is prohibited.
We therefore suggest that
you seek legal advice regarding the laws in your country / state
The following information is provided to offer an overview
of the current available information however I do not claim to have any legal training or be a specialist in surrogacy law. As such I have also provided links to surrogacy law specialists around the world so that you can get professional advice relating to your circumstances.
I hope you find them useful!
Please do let me know how
you get on
Em:-)
The Commonwealth Government of Australia cannot universally legislate for reproductive technology practice. Therefore each state and territory is responsible for designing and implementing separate legislation. This has resulted in laws and practices that differ from state to state.
Please do obtain legal advice before entering into a surrogacy arrangement of any kind within Australia
Surrogacy in Australia- law pages - find an Australian surrogacy law specialist
Surrogacy New Zealand
The most important provision in the ADOPTION ACT 1955 is section 25, which states that, unless the court consents to it,
it is illegal for any person to
give or receive, or to agree to give or receive, any payment
or reward in consideration of
the adoption or proposed adoption of a child or in consideration of arranging an adoption or proposed adoption.
A major issue for the parties
to a surrogacy arrangement involving payment of money
will therefore be whether the arrangement breaches section 25. This is a question that
will be decided by a court on
the basis of the particular circumstances of each case. However, the courts have been willing to find that a surrogacy arrangement does not breach this section.
Also note that although
Section 26 of the Act states that it is illegal to publish an advertisement indicating:
- that the parent or guardian of a child desires to adopt out the child, or
- that any person desires to adopt a child, or
- that any person or organisation is willing to arrange for a child to be adopted
that, again, the courts have been willing to hold that this section will not apply to a surrogacy arrangement.
Please do obtain legal advice before entering into a surrogacy arrangement of any kind within New Zealand
Surrogacy in New Zealand- law pages - find a New Zealand surrogacy law specialist
Surrogacy within the UK
The law in the United Kingdom stipulates that surrogacy is illegal if money changes hands. However the reverse side of the coin is that if woman A volunteers to carry a child for woman B without taking money from her this is fine. That said there are no agencies in the United Kingdom who would broker or arrange the meeting of two such women- and this is where we hope to fill the gap.
There are also support groups who can offer help and advice on the subject but cannot and do not offer to make introductions between those able to have children and those wanting to have children.
Please do obtain legal advice before entering into a surrogacy arrangement of any kind within the UK
Surrogacy in the UK- law pages - find a UK surrogacy law specialist
Surrogacy within the USA
The laws governing surrogacy within the USA vary from state to state- the following gives a brief over-view- do use the links to find local surrogacy specialists along with web sites, blogs and useful information about surrogacy
| Alabama Surrogacy Law There is no provision on surrogacy in Alabama state law, but it appears to be permitted. |
| Alaska Surrogacy Law There is no provision on surrogacy in Alaska state law. |
| Arizona Surrogacy Law Arizona law is unclear on the issue of surrogacy agreements. |
| Arkansas Surrogacy Law There is no provision on surrogacy in Arkansas state law, but it appears to be permitted. |
| California Surrogacy Law There is no provision on surrogacy in California state law, but it appears to be permitted. |
| Colorado Surrogacy Law There is no provision on surrogacy in Colorado state law. |
| Connecticut Surrogacy Law There is no provision on surrogacy in Connecticut state law, but it appears to be permitted. |
| Delaware Surrogacy Law There is no provision on surrogacy in Delaware state law, but it appears to be prohibited. |
| District of Columbia Surrogacy Law District of Columbia law prohibits surrogacy agreements. |
| Florida Surrogacy Law Florida law permits surrogacy agreements for married couples only. |
| Georgia Surrogacy Law There is no provision on surrogacy in Georgia state law. |
| Hawaii Surrogacy Law There is no provision on surrogacy in Hawaii state law. |
| Idaho Surrogacy Law There is no provision on surrogacy in Idaho state law, but it appears to be permitted. |
| Illinois Surrogacy Law Illinois law permits surrogacy agreements for gestational surrogacy, and unclear for traditional surrogacy. |
| Indiana Surrogacy Law Indiana law does not enforce surrogacy agreements. |
| Iowa Surrogacy Law There is no provision on surrogacy in Iowa state law. |
| Kansas Surrogacy Law There is no provision on surrogacy in Kansas state law, but contracts appear to be unenforceable. |
| Kentucky Surrogacy Law There is no provision on surrogacy in Kentucky state law, but it appears to be permitted for uncompensated contracts. |
| Louisiana Surrogacy Law Louisiana law prohibits holds traditional surrogacy agreements void and unenforceable when compensated. there are now laws for uncompensated traditional or gestational surrogacy. |
| Maine Surrogacy Law There is no provision on surrogacy in Maine state law. |
| Maryland Surrogacy Law Maryland state law is unclear on surrogacy, related laws may hold compensated agreements unenforceable.. |
| Massachusetts Surrogacy Law Massachusetts has no laws to surrogacy contracts, but several case has upheld the contracts. |
| Michigan Surrogacy Law Michigan law prohibits compensated surrogacy agreements. Also the contracts are void and unenforceable. |
| Minnesota Surrogacy Law There is no provision on surrogacy in Minnesota state law, but there have been cases where agreements were upheld in court. |
| Mississippi Surrogacy Law There is no provision on surrogacy in Mississippi state law. |
| Missouri Surrogacy Law Missouri state law is unclear on surrogacy contracts. |
| Montana Surrogacy Law There is no provision on surrogacy in Montana state law. |
| Nebraska Surrogacy Law Nebraska law prohibits compensated surrogacy contracts, but may uphold uncompensated contracts.. |
| Nevada Surrogacy Law Nevada law permits surrogacy agreements for married couples only. |
| New Hampshire Surrogacy Law New Hampshire law permits surrogacy agreements for married couples only. |
| New Jersey Surrogacy Law New Jersey law permits uncompensated gestational surrogacy contracts. |
| New Mexico Surrogacy Law New Mexico law permits uncompensated surrogacy contracts. |
| New York Surrogacy Law New York law prohibits surrogacy contracts and are unenforceable. |
| North Carolina Surrogacy Law There is no provision on surrogacy in North Carolina state law, but it appears to be permitted. |
| North Dakota Surrogacy Law North Dakota law states that traditional surrogacy contracts unenforceable, yet gestational surrogacy contracts are enforceable. |
| Ohio Surrogacy Law Ohio state law is unclear on surrogacy, however some courts have decided favorably. |
| Oklahoma Surrogacy Law There is no provision on surrogacy in Oklahoma state law, but it appears to permitted only with uncompensated contracts.. |
| Oregon Surrogacy Law Oregon law permits only uncompensated surrogacy contracts. |
| Pennsylvania Surrogacy Law Pennsylvania state law is unclear on surrogacy. The courts have upheld contracts that were established with a legally recognized agency. |
| Rhode Island Surrogacy Law There is no provision on surrogacy in Rhode Island state law, but it appears to be permitted. |
| South Carolina Surrogacy Law South Carolina state law is unclear on surrogacy, yet case law seems to favor surrogacy contracts.. |
| South Dakota Surrogacy Law There is no provision on surrogacy in South Dakota state law. |
| Tennessee Surrogacy Law Tennessee law permits surrogacy agreements for married couples only. |
| Texas Surrogacy Law Texas law permits gestational surrogacy contracts for married couples only. |
| Utah Surrogacy Law Utah law allows gestational surrogacy contracts. |
| Vermont Surrogacy Law There is no provision on surrogacy in Vermont state law, but it appears to be permitted. |
| Virginia Surrogacy Law Virginia law permits uncompensated surrogacy contracts for married couples only. |
| Washington Surrogacy Law Washington law permits uncompensated surrogacy agreements. |
| West Virginia Surrogacy Law There is no provision on surrogacy in West Virginia state law, but it appears to be permitted. |
| Wisconsin Surrogacy Law Wisconsin state law is unclear on surrogacy. |
| Wyoming Surrogacy Law There is no provision on surrogacy in Wyoming state law. |
Please do obtain legal advice before entering into a surrogacy arrangement of any kind within the USA
Surrogacy in the USA- use the links above or click here to find a USA surrogacy law specialist
Surrogacy Canada
Commercial surrogacy arrangements were prohibited
in 2004 by the Assisted Human Reproduction Act.
Altruistic surrogacy however remains legal.
In the province of Quebec, contracts that involve surrogacy are unenforceable
Please do therefore obtain
legal advice before entering into a surrogacy arrangement of any kind within Canada
Surrogacy in Canada- law pages - find a Canadian surrogacy law specialist
Surrogacy Worldwide
India is emerging as a leader
in international surrogacy and
a destination in surrogacy-related fertility tourism.
Indian surrogates have
been increasingly popular
with fertile couples in industrialized nations because
of the relatively low cost.
Indian clinics are at the same time becoming more
competitive, not just in the pricing, but in the hiring
and retention of Indian
females as surrogates.
Clinics charge patients for a complete package, including fertilization, the surrogate's fee, and delivery of the baby at a hospital. Including the costs of flight tickets, medical procedures and hotels, it comes to
roughly a third of the price compared with going through the procedure in the UK.
Surrogacy in India is relatively low cost and the legal environment is favorable. In 2008, the Supreme Court of India in the Manji's case has
held that commercial surrogacy
is permitted in India. That has again increased the
international confidence in
going in for surrogacy in India.
Please do obtain legal advice before entering into a surrogacy arrangement of any kind in other countries not yet mentioned Surrogacy worldwide- law pages - find an international surrogacy law specialist
