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Surrogacy Laws in Massachusetts

Massachusetts has no laws dealing with surrogacy arrangements, but there are cases that have looked well upon it. There have been no cases with LGBT couples or individuals though.


Massachusetts courts have basically dealt with surrogacy agreements well. There was a case in 1998, and the surrogate mother for the traditional surrogacy agreement (where the surrogate mother is the egg’s biological contributor) chose in the sixth month of the pregnancy to retain her child. The Judicial Supreme Court in the state said that there were two factors that had to exist to confirm a surrogacy contract: the surrogate mother had to given consent to the surrogacy, and it has to last for four days subsequent to the birth, that the husband of the surrogate mother has to give his informed consent to the arrangement prior to it happening, that the surrogate mother has already had one successful pregnancy, that all the parties involved have to be evaluated for their mental health, that the mother has to be able to carry the child without hurting it, that the parents who are intended have to be acceptable people to take custody of the child, and that all parties have counsel prior to it. The Court said that no agreement was actually valid, and it said that the father and mother could not make a binding determination of the best interests of the child in a private contract. A custody agreement has to be dealt with a judicial determination of custody flowing from the child’s best interests.

There was a case in 2001 where there was a gestational surrogacy contract where the surrogate mother was the egg’s biological contributor. The Judicial Supreme Court approved a joint request from the gestational mother who was compensated, the genetic feather, and the genetic mother to get the genetic parents put as the birth parents on the birth certificates. While this goes further in indicating the judiciary’s openness to agreements concerning surrogacy, the Court didn’t give a big endorsement of the deal. The Courts said that existing state law didn’t address with gestational surrogacy contracts and it set out criteria under which all the lower courts could look at review requests for birth certificate assignations where were atypical in surrogacy arrangements. The following criteria are: (a) the sole genetics are the plaintiffs; (b) the gestational carrier agrees upon the orders that are sought; (c) not anyone, and that includes the hospital, has argued against the petition or complaint; and (d) by putting forth the stipulation for judgment and the complaint, the plaintiffs are in agreement that they have given up the right to any contradictory provisions in the agreement. The Court has also said that the gestational mother being connected to one of the genetic parents is an element that might bend one of these cases into a better light.



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