Gestational Surrogacy Regulations in Massachusetts

Overview

Gestational Surrogacy is generally permitted in Massachusetts by case law established by the highest Court in Massachusetts: Hodas v. Morin, 814 N.E.2d 230 (2004), Culliton v. Beth Isr. Deaconess Med. Ctr., 756 N.E.2d 1133 (2001), and R.R. v. M.H., 689 N.E.2d 790 (1998).

Intended Parents

Age requirement:
18 years of age or older
Marriage requirement:
No
Married heterosexual couple:
Yes
Married same-sex couple:
Yes
Unmarried heterosexual couple:
Yes
Unmarried same-sex couple:
Yes
Resident status:
No*
Independent legal counsel:
Yes

Gestational Surrogates

Age requirement:
18 years of age or older
Marriage requirement:
No
If married/partnered:
husband’s/partner’s sperm cannot be used
Surrogate status:
Gestational Surrogacy
Resident status:
No*
Use of own embryos:
No
Independent legal counsel:
Yes
*as long as the IP(s) or GC are residents of Massachusetts there is a basis for venue in Massachusetts. There is also venue in Massachusetts if the birth of the child occurs in Massachusetts.

Embryos

Intended Parents own sperm:
Yes
Intended Parents own eggs:
Yes
Intended Parents using sperm donor:
Yes
Intended Parents using egg donor:
Yes
Intended Parents using both egg and sperm donor:
Yes

Birth of Child

Birth in Massachusetts:
Yes
Birth outside of Massachusetts:
Yes, however, discuss with your legal counsel

Pre-Birth Orders can be obtained by Intended Parents where at least one of them shares a genetic connection with the child.

Parentage

Pre-Birth Orders:
Yes
Hearing to obtain Order:
Yes, unless judge waives hearing
Post-Birth Orders:
Yes

General Information

Will Massachusetts Vital Records honor a Pre-Birth Order from another state:
Yes
What is the typical time frame to obtain a birth certificate after delivery:
1-2 weeks
How are same-sex parents named on the final birth certificate:
Parent and Parent
Can an international same-sex male couple obtain an initial birth certificate naming the biological father and Gestational Carrier:
Yes* (requires a Voluntary Acknowledgement of Paternity)
Can an international same-sex male couple subsequently obtain a birth certificate naming only the biological father or both fathers with no mention of the Gestational Carrier:
Yes* (Requires a Post-Birth Adoption)

Second Parent and Stepparent Adoptions for Massachusetts Residents:

This situation typically arises if the child is born outside of Massachusetts. The parents then return to Massachusetts to obtain a second parent adoption or stepparent adoption in Massachusetts. Please consult with your attorney on this matter if this issue is to arise.

Traditional Surrogacy in Massachusetts?

Traditional Surrogacy is generally restricted and not commonly enforced. Please consult with your local attorney.
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