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.
Citations: Culliton v. Beth Israel Deaconess Med. Ctr., 756 N.E.2d 1133 (Mass. 2001);
R.R. v. M.H., 689 N.E.2d 790 (Mass. 1998).
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Last Updated: 9/9/2009