Text of MA H 4750 (2024)

1 of 42 FILED ON: 6/12/2024 HOUSE . . . . . . . . . . . . . . . No. 4750 House bill No. 4672, as changed by the House committee on Bills in the Third Reading and as amended and passed to be engrossed. June 12, 2024. The Commonwealth of Massachusetts _______________ In the One Hundred and Ninety-Third General Court (2023-2024) _______________ An Act to ensure legal parentage equality. Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows: 1 SECTION 1. Section 4B of chapter 46 of the General Laws is hereby repealed. 2 SECTION 2. Section 13 of said chapter 46, as appearing in the 2022 Official Edition, is 3 hereby amended by striking out, in lines 53 to 56, inclusive, the words “paternity by a court or 4 administrative agency of competent jurisdiction in the commonwealth and the court orders the 5 state registrar to amend the birth certificate to include the information relating to the father” and 6 inserting in place thereof the following words:- parentage by a court or administrative agency of 7 competent jurisdiction in the commonwealth and the court orders the state registrar to originally 8 issue or to amend the birth certificate to include the information relating to the parentage of the 9 child. 10 SECTION 2A. Chapter 209C of the General Laws is hereby amended by striking out the 11 title, as so appearing, and inserting in place thereof the following title: NONMARITAL 12 CHILDREN AND PARENTAGE OF CHILDREN. 2 of 42 13 SECTION 3. Section 1 of said chapter 209C, as so appearing, is hereby amended by 14 inserting after the first sentence the following sentence:- Every child shall have the same rights 15 and protections under law to parentage without regard to the marital status, gender, gender 16 identity or sexual orientation of their parents or the circumstances of their birth, including 17 whether they were born as a result of assisted reproduction or surrogacy. 18 SECTION 4. Said section 1 of said chapter 209C, as so appearing, is hereby further 19 amended by striking out, in lines 7 and 8, 14, 15 and 17, the word “paternity”, each time it 20 appears, and inserting in place thereof, in each instance, the following word:- parentage. 21 SECTION 5. Said section 1 of said chapter 209C, as so appearing, is hereby further 22 amended by striking out, in lines 11 and 20, the words “child born out of wedlock”, each time 23 they appear, and inserting in place thereof, in each instance, the following words:- nonmarital 24 child. 25 SECTION 6. Said section 1 of said chapter 209C, as so appearing, is hereby further 26 amended by striking out, in lines 11 and 12, the words “a man and woman” and inserting in place 27 thereof the following word:- persons. 28 SECTION 7. Said section 1 of said chapter 209C, as so appearing, is hereby further 29 amended by striking out, in lines 20 and 25, the word “his”, each time it appears, and inserting in 30 place thereof, in each instance, the following word:- their. 31 SECTION 8. Said chapter 209C is hereby further amended by inserting after section 1 the 32 following section:- 33 Section 1A. For purposes of this chapter, unless the context clearly indicates otherwise, 34 the following terms shall have the following meanings: 3 of 42 35 “Acknowledged parent”, a person who has established a parent-child relationship through 36 a voluntary acknowledgement of parentage. 37 “Adjudicated parent”, a person who has been adjudicated to be a parent of a child by a 38 court with jurisdiction. 39 “Alleged genetic parent”, a person who is alleged to be or alleges to be a genetic parent 40 of a child whose parentage has not been adjudicated. The term includes a putative parent, an 41 alleged genetic father and an alleged genetic mother. The term does not include a presumed 42 parent, an individual whose parental rights have been terminated or declared not to exist, or a 43 donor as defined in section 27. 44 “Assisted reproduction”, a method of causing pregnancy other than sexual intercourse, 45 which includes, but is not limited to, artificial insemination, intrauterine, intracervical or vaginal 46 insemination, donation of gametes or embryos, in vitro fertilization and transfer of embryos, and 47 intracytoplasmic sperm injection. 48 “Donor”, a person who provides a gamete or embryo intended for use in assisted 49 reproduction or gestation, whether or not for consideration; provided, however, that this term 50 does not include a person who consents to assisted reproduction with the intent to be a parent of 51 the resulting child. 52 “Genetic surrogacy agreement”, a surrogacy agreement involving a genetic surrogate. 53 “Genetic surrogate”, a person who is not an intended parent and agrees to become 54 pregnant through assisted reproduction using their own gamete under a genetic surrogacy 55 agreement as provided in this chapter. 4 of 42 56 “Gestational surrogacy agreement”, a surrogacy agreement involving a gestational 57 surrogate. 58 “Gestational surrogate”, a person who is not an intended parent and agrees to become 59 pregnant through assisted reproduction using gametes that are not their own under a gestational 60 surrogacy agreement as provided in this chapter. 61 “Intended parent”, a person, whether married or unmarried, who manifests an intent to be 62 legally bound as a parent of a child resulting from assisted reproduction. 63 “Nonmarital child”, any child born to persons who are not married to each other. 64 “Parent”, a person who has established parentage of a child through: (a) birth except as 65 otherwise provided in sections 28 to 28P, inclusive; (b) presumption pursuant to section 6; (c) 66 adjudication by a court of competent jurisdiction; (d) adoption pursuant to chapter 210; (e) 67 acknowledgement pursuant to section 11; (f) de facto parentage pursuant to section 25; (g) 68 assisted reproduction pursuant to section 27; or (h) surrogacy pursuant to sections 28 to 28P, 69 inclusive. 70 “Parentage” or “parent-child relationship”, the legal relationship between a child and a 71 parent of the child. 72 “Presumed parent”, a person who under section 6 is presumed to be a parent of a child, 73 unless the presumption is overcome in a judicial proceeding, a valid denial of parentage is made 74 under section 11 or a court adjudicates the person to be a parent. 75 “Surrogacy agreement”, an agreement between 1 or more intended parents and a person 76 who is not an intended parent in which that person agrees to become pregnant through assisted 5 of 42 77 reproduction and which provides that each intended parent is a parent of a child conceived under 78 the agreement. 79 “Surrogate”, a genetic surrogate or gestational surrogate. 80 SECTION 9. Section 2 of said chapter 209C, as appearing in the 2022 Official Edition, is 81 hereby amended by striking out, in line 1, the word “Paternity” and inserting in place thereof the 82 following word:- Parentage. 83 SECTION 10. Said section 2 of said chapter 209C, as so appearing, is hereby further 84 amended by striking out, in lines 5, 6, 12, 13, 16 and 18, the word “paternity”, each time it 85 appears, and inserting in place thereof, in each instance, the following word:- parentage. 86 SECTION 11. Section 3 of said chapter 209C, as so appearing, is hereby amended by 87 striking out, in lines 3, 7, 32, 35 and 36 and 51, the word “paternity”, each time it appears, and 88 inserting in place thereof, in each instance, the following word:- parentage. 89 SECTION 12. Said section 3 of said chapter 209C, as so appearing, is hereby further 90 amended by inserting after the word “parentage”, in line 4, the following words:- under this 91 chapter. 92 SECTION 13. Said section 3 of said chapter 209C, as so appearing, is hereby further 93 amended by striking out, in line 13, the word “his” and inserting in place thereof the following 94 word:- their. 95 SECTION 14. Section 4 of said chapter 209C, as so appearing, is hereby amended by 96 striking out, in lines 1 and 11, the word “paternity”, each time it appears, and inserting in place 97 thereof, in each instance, the following word:- parentage. 6 of 42 98 SECTION 15. Section 5 of said chapter 209C, as so appearing, is hereby amended by 99 striking out, in lines 1 and 2, 19, 55, 60 and 62, the word “paternity”, each time it appears, and 100 inserting in place thereof, in each instance, the following word:- parentage. 101 SECTION 16. Said section 5 of said chapter 209C, as so appearing, is hereby further 102 amended by striking out, in line 3, the word “mother” and inserting in place thereof the following 103 words:- person who gave birth. 104 SECTION 17. Said section 5 of said chapter 209C, as so appearing, is hereby further 105 amended by striking out, in lines 4 and 9, the word “father”, each time it appears, and inserting in 106 place thereof, in each instance, the following words:- other parent. 107 SECTION 18. Said section 5 of said chapter 209C, as so appearing, is hereby further 108 amended by striking out, in lines 4 and 21, the word “himself”, each time it appears, and 109 inserting in place thereof, in each instance, the following word:- themselves. 110 SECTION 19. Said section 5 of said chapter 209C, as so appearing, is hereby further 111 amended by striking out, in line 7, the words “mother if the mother” and inserting in place 112 thereof the following words:- person who gave birth if that person. 113 SECTION 20. Said section 5 of said chapter 209C, as so appearing, is hereby further 114 amended by striking out, in line 17, the words “mother of the child” and inserting in place 115 thereof the following words:- person who gave birth. 116 SECTION 21. Said section 5 of said chapter 209C, as so appearing, is hereby further 117 amended by striking out, in lines 21 and 22, the words “father unless he is or was the mother’s 7 of 42 118 husband” and inserting in place thereof the following words:- parent unless they are or were the 119 spouse. 120 SECTION 22. Said section 5 of said chapter 209C, as so appearing, is hereby further 121 amended by striking out subsection (b) and inserting in place thereof the following subsection:- 122 (b) Voluntary acknowledgments of parentage may be executed by the person who gave 123 birth and either an alleged genetic parent, presumed parent or intended parent as provided in this 124 chapter, whether either or both is a minor, and may be registered pursuant to section 11 only if 125 the signatures of both signatories are notarized. If the person who gave birth to the child was or 126 is married and the child’s birth occurs during the marriage or within 300 days of its termination 127 by divorce, a voluntary acknowledgment of parentage naming the other parent may be executed 128 by the person who gave birth and the other parent only if the person who gave birth and their 129 spouse or former spouse at the time of the child’s birth or conception sign an affidavit denying 130 that the spouse is the parent of the child; provided, however, that where the marriage has been 131 terminated by annulment or by the death of either spouse, parentage of the other parent may only 132 be established by filing a complaint to establish parentage as provided in this chapter. Prior to 133 signing a voluntary acknowledgment of parentage at the hospital or thereafter at the office of the 134 city or town clerk as part of the birth registration process pursuant to section 3C of chapter 46, 135 with the department of transitional assistance, with the IV–D agency set forth in chapter 119A, 136 with any agency designated by the federal Secretary of Health and Human Services or with any 137 official of a court, a person who gave birth and the other parent shall receive notice orally, or 138 through the use of video or audio equipment, and in writing of alternatives to signing the 139 acknowledgment, including the availability of genetic marker testing, as well as the benefits and 140 responsibilities with respect to child support, custody and visitation that may arise from signing 8 of 42 141 the acknowledgment, and subsequently filing the acknowledgment with the court or with the 142 registrar of vital records and statistics as provided in this chapter. 143 SECTION 23. Section 6 of said chapter 209C, as so appearing, is hereby amended by 144 striking out, in lines 1 and 2, the words “In all actions under this chapter a man is presumed to be 145 the father of a child and must be joined as a party” and inserting in place thereof the following 146 words:- A person is presumed to be the parent of a child and shall be joined as a party in all 147 actions under this chapter. 148 SECTION 24. Said section 6 of said chapter 209C, as so appearing, is hereby further 149 amended by striking out, in lines 3, 6, 11, 14, 16 and 18, the word “he”, each time it appears, and 150 inserting in place thereof, in each instance, the following words:- the person. 151 SECTION 25. Said section 6 of said chapter 209C, as so appearing, is hereby further 152 amended by striking out, in line 3, 7, 12 and 19, the word “mother”, each time it appears, and 153 inserting in place thereof, in each instance, the following words:- person who gave birth. 154 SECTION 26. Said section 6 of said chapter 209C, as so appearing, is hereby further 155 amended by striking out, in line 17, the word “paternity” and inserting in place thereof the 156 following word:- parentage. 157 SECTION 27. Said section 6 of said chapter 209C, as so appearing, is hereby further 158 amended by striking out, in lines 21 to 23, inclusive, the words “he has acknowledged paternity 159 in a parental responsibility claim as provided in section four A of chapter two hundred and ten 160 and the mother” and inserting in place thereof the following words:- the person has 161 acknowledged parentage in a parental responsibility claim as provided in section 4A of chapter 162 210 and the person who gave birth. 9 of 42 163 SECTION 28. Said section 6 of said chapter 209C, as so appearing, is hereby further 164 amended by striking out, in lines 25 to 27, inclusive, the words “his consent and the consent of 165 the child’s mother, he is named as the child’s father” and inserting in place thereof the following 166 words:- the person’s consent and the consent of the person who gave birth, the person is named 167 as the child’s parent. 168 SECTION 29. Said section 6 of said chapter 209C, as so appearing, is hereby further 169 amended by striking out subsection (b) and inserting in place thereof the following subsection:- 170 (b) Notwithstanding subsection (a), a spouse or former spouse shall not be required to be 171 joined as a party if that person’s non-parentage of the child has previously been adjudicated in a 172 proceeding between the spouse and the person who gave birth to the child in a court or 173 administrative agency of competent jurisdiction. 174 SECTION 30. Section 7 of said chapter 209C, as so appearing, is hereby amended by 175 striking out, in lines 3 and 4 and in line 8, the word “paternity”, each time it appears, and 176 inserting in place thereof, in each instance, the word:- parentage. 177 SECTION 31. Section 8 of said chapter 209C, as so appearing, is hereby amended by 178 striking out, in lines 1, 2, 5 and 15, the word “paternity”, each time it appears, and inserting in 179 place thereof, in each instance, the following word:- parentage. 180 SECTION 32. Said section 8 of said chapter 209C, as so appearing, is hereby further 181 amended by striking out, in line 4, the word “his” and inserting in place thereof the following 182 words:- the defendant’s. 10 of 42 183 SECTION 33. Said section 8 of said chapter 209C, as so appearing, is hereby further 184 amended by striking out, in line 7, the words “mother or putative father submits” and inserting in 185 place thereof the following words:- person who gave birth or alleged genetic parent submits 186 sufficient evidence of parentage, which may include evidence. 187 SECTION 34. Said section 8 of said chapter 209C, as so appearing, is hereby further 188 amended by striking out, in lines 12 and 13, the words “father or mother” and inserting in place 189 thereof the following word:- parent. 190 SECTION 35. Said section 8 of said chapter 209C, as so appearing, is hereby further 191 amended by striking out, in line 16, the word “mother” and inserting in place thereof the 192 following words:- person who gave birth. 193 SECTION 36. Section 9 of said chapter 209C, as so appearing, is hereby amended by 194 striking out, in line 21, the word “his” and inserting in place thereof the following words:- the 195 defendant’s. 196 SECTION 37. Said section 9 is hereby further amended by striking out, in line 27, the 197 word “mother” and inserting in place thereof the following words: another parent. 198 SECTION 38. Subsection (a) of section 10 of said chapter 209C, as so appearing, is 199 hereby amended by striking out the first paragraph and inserting in place thereof the following 200 paragraph:- 201 Upon or after an adjudication or voluntary acknowledgment of parentage, the court may 202 award custody to either parent or to them jointly or to another suitable person as hereafter further 203 specified as may be appropriate in the best interests of the child. 11 of 42 204 SECTION 39. Said section 10 of said chapter 209C, as so appearing, is hereby further 205 amended by striking out subsection (b) and inserting in place thereof the following subsection:- 206 (b) Prior to or in the absence of an adjudication or voluntary acknowledgment of 207 parentage, the person who gave birth shall have custody of a nonmarital child. In the absence of 208 an order or judgment of a probate and family court relative to custody, the person who gave birth 209 shall continue to have custody of a nonmarital child after an adjudication of parentage or 210 voluntary acknowledgment of parentage. 211 SECTION 40. Section 11 of said chapter 209C, as so appearing, is hereby amended by 212 striking out, in line 2, the words “putative father” and inserting in place thereof the following 213 words:- alleged genetic parent, presumed parent or intended parent. 214 SECTION 41. Said section 11 of said chapter 209C, as so appearing, is hereby further 215 amended by striking out, in line 3, the words “mother of” and inserting in place thereof the 216 following words:- person who gave birth to. 217 SECTION 42. Said section 11 of said chapter 209C, as so appearing, is hereby further 218 amended by striking out, in lines 7, 16, 20, 22 and 37, the word “paternity”, each time it appears, 219 and inserting in place thereof, in each instance, the following word:- parentage. 220 SECTION 43. Said section 11 of said chapter 209C, as so appearing, is hereby further 221 amended by striking out, in line 21, the words “by such putative father and mother”. 222 SECTION 44. Subsection (a) of said section 11 of said chapter 209C, as so appearing, is 223 hereby amended by striking out the tenth sentence and inserting in place thereof the following 224 sentence:- If either party rescinds the acknowledgment in a timely fashion and the basis of the 12 of 42 225 acknowledgment was genetic parentage, the court shall order genetic marker testing and proceed 226 to adjudicate parentage or nonparentage in accordance with this chapter; provided, however, that 227 the rescinded acknowledgment shall constitute the proper showing required for an order to 228 submit to such testing; and provided further, that the rescinded acknowledgment shall be 229 admissible as evidence of the alleged genetic parent’s parentage and shall serve as sufficient 230 basis for admitting the report of the results of genetic marker tests. 231 SECTION 45. Said section 11 of said chapter 209C, as so appearing, is hereby further 232 amended by striking out, in line 56, the word “nonpaternity” and inserting in place thereof the 233 following word:- nonparentage. 234 SECTION 46. Said section 11 of said chapter 209C, as so appearing, is hereby further 235 amended by striking out, in line 59, the words “a mother and father” and inserting in place 236 thereof the following word:- parents. 237 SECTION 47. Section 12 of said chapter 209C, as so appearing, is hereby amended by 238 striking out, in line 2, the word “paternity” and inserting in place thereof the following word:- 239 parentage. 240 SECTION 48. Section 13 of said chapter 209C, as so appearing, is hereby amended by 241 striking out, in lines 1 and 2, the words “paternity or in which paternity” and inserting in place 242 thereof the following words:- parentage or in which parentage. 243 SECTION 49. Said section 13 of said chapter 209C, as so appearing, is hereby further 244 amended by striking out, in lines 7 to 9, inclusive, the words “father is adjudicated not to be the 245 father of the child; provided, however, that the child, the child’s mother, the person adjudicated 246 to be the father” and inserting in place thereof the following words:- parent is adjudicated not to 13 of 42 247 be the parent of the child; provided, however, that the child, the person who gave birth to the 248 child, the person adjudicated to be the parent. 249 SECTION 50. Said chapter 209C is hereby further amended by striking out section 14 250 and inserting in place thereof the following section:- 251 Section 14. Except as otherwise provided in this chapter, an action to establish parentage 252 of a child may be instituted during pregnancy but shall only be filed by the person to give birth 253 or their representative or by the IV-D agency as set forth in chapter 119A on behalf of the person 254 to give birth. In the case of any complaint brought prior to the birth of the child, no final 255 judgment on the issue of parentage shall be made until after the birth of the child; provided, 256 however, that the court may order temporary support or health care coverage. 257 SECTION 51. Section 16 of said chapter 209C, as appearing in the 2022 Official Edition, 258 is hereby amended by striking out subsections (c), (d) and (e) and inserting in place thereof the 259 following 3 subsections:- 260 (c) In an action pursuant to this chapter, the person who gave birth and the alleged 261 genetic parent shall be competent to testify and no privilege or disqualification created under 262 chapter 233 shall prohibit testimony by a spouse or former spouse which is otherwise competent. 263 If the person who gave birth is or was married, both that person and their spouse or former 264 spouse may testify to parentage of the child. 265 (d) In an action to establish parentage, testimony relating to sexual access to the person 266 who gave birth by an unidentified person at any time or by an identified person at any time other 267 than the probable time of conception of the child is inadmissible in evidence unless offered by 268 the person who gave birth. 14 of 42 269 (e) In an action to establish parentage based on alleged genetic parentage, the court may 270 view the person who gave birth, the child and the alleged genetic parent to note any resemblance 271 among the parties notwithstanding the absence of expert testimony. 272 SECTION 52. Said section 16 of said chapter 209C, as so appearing, is hereby further 273 amended by striking out, in line 25, the word “mother” and inserting in place thereof the 274 following words:- person who gave birth. 275 SECTION 53. Said section 16 of said chapter 209C, as so appearing, is hereby further 276 amended by striking out, in line 36, the word “paternity” and inserting in place thereof the 277 following word:- parentage. 278 SECTION 54. Section 17 of said chapter 209C, as so appearing, is hereby amended by 279 striking out, in lines 1 and 2, the words “paternity of a child born out of wedlock” and inserting 280 in place thereof the following words:- parentage of a nonmarital child based on alleged genetic 281 parentage. 282 SECTION 55. Said section 17 of said chapter 209C, as so appearing, is hereby further 283 amended by striking out, in lines 4, 9, 10, 13, 26 and 28, the word “mother”, each time it 284 appears, and inserting in place thereof, in each instance, the following words:- person who gave 285 birth. 286 SECTION 56. Said section 17 of said chapter 209C, as so appearing, is hereby further 287 amended by striking out, in lines 4, 9, 10, 13, 26, 28, 31, 48 and 49, the words “putative father”, 288 each time they appear, and inserting in place thereof, in each instance, the following words:- 289 alleged genetic parent. 15 of 42 290 SECTION 56A. Said section 17 of said chapter 209C, as so appearing, is hereby further 291 amended by striking out, in lines 21 and 22, the words “putative father’s” and inserting in place 292 thereof the following words:- alleged genetic parent’s 293 SECTION 57. Said section 17 of said chapter 209C, as so appearing, is hereby further 294 amended by striking out, in lines 22 and 30, the word “paternity”, each time it appears, and 295 inserting in place thereof, in each instance, the following words:- genetic parentage. 296 SECTION 58. Said section 17 of said chapter 209C, as so appearing, is hereby further 297 amended by striking out, in lines 31 and 32 and in line 49, the first time it appears, the word 298 “father” and inserting in place thereof, in each instance, the following word:- parent. 299 SECTION 59. Said section 17 of said chapter 209C, as so appearing, is hereby further 300 amended by adding the following sentence:- Genetic testing shall not be used to challenge the 301 parentage of an individual who is a parent under sections 25, 27 and 28 to 28P, inclusive, or to 302 establish the parentage of an individual who is a donor as provided in said sections. 303 SECTION 60. Section 21 of said chapter 209C, as so appearing, is hereby amended by 304 striking out, in line 4, the word “paternity” and inserting in place thereof the following word:- 305 parentage. 306 SECTION 61. Section 23 of said chapter 209C, as so appearing, is hereby amended by 307 striking out, in lines 1, 10, 11 and 14, the word “paternity”, each time it appears, and inserting in 308 place thereof, in each instance, the following word:- parentage. 309 SECTION 62. Said chapter 209C is hereby further amended by adding the following 20 310 sections:- 16 of 42 311 Section 25. (a) This section shall apply to nonmarital and marital children. 312 (b) A proceeding to adjudicate parentage of a child under this section may be 313 commenced only by a person who: (i) is alive when the proceeding is commenced; and (ii) 314 claims to be a de facto parent of the subject child. 315 (c) A proceeding under this section must be commenced during a child’s lifetime and 316 before the child attains 18 years of age. 317 (d) Proceedings under this section shall be governed by the Massachusetts Rules of 318 Domestic Relations Procedure. 319 (e) All parents, legal guardians and legal custodians of the subject child shall be entitled 320 to notice. 321 (f) The plaintiff shall file a verified complaint alleging specific facts to support each 322 element required to establish de facto parentage as set forth in subsection (i), along with any 323 other pleadings, affidavits or information required by the court. The verified complaint shall be 324 served on all parents, legal guardians and legal custodians of the child and any other party to the 325 proceeding. Prior to an adjudication of the merits, and within 60 days of the commencement of a 326 proceeding under this section, the court shall determine, based on the pleadings, whether the 327 plaintiff has alleged facts sufficient to satisfy each element required to establish de facto 328 parentage. Upon request made by a party entitled to notice or upon the court’s own initiative, the 329 court may hold a hearing on the sufficiency of the pleadings. If the court holds a hearing under 330 this subsection, the hearing shall be held on an expedited basis. Failure of a pleading to meet 331 these standards is grounds for the court to enter a sua sponte judgment of dismissal without 332 prejudice. 17 of 42 333 (g) Prior to an adjudication of the merits, and within 60 days of the commencement of a 334 proceeding under this section, the court shall determine whether the plaintiff has standing to seek 335 an adjudication of parentage of a child under this section. Upon request made by a party entitled 336 to notice or upon the court’s own initiative, the court may hold a hearing on the issue of standing. 337 There shall be a rebuttable presumption against standing and a hearing shall be required if the 338 court finds by a preponderance of the evidence that: 339 (i) the plaintiff is or was the defendant of an abuse prevention order issued after notice 340 and hearing pursuant to chapter 209A, protection order issued pursuant to section 34B or 34C of 341 chapter 208 or harassment prevention order issued pursuant to chapter 258E involving the child, 342 a parent of the child or a household member of the child; 343 (ii) the department of children and families has made a determination supporting an 344 allegation of abuse against the plaintiff with respect to the subject child or another child in the 345 household; 346 (iii) a defendant is engaged or has engaged in military service as defined in 50 U.S.C. 347 App. 511 within the past 3 years, unless the defendant consents in writing and such written 348 consent is filed with the complaint; 349 (iv) a defendant executed a military family care plan and but for the plan the plaintiff 350 would not meet 1or more of the requirements of subsection (i), unless the defendant consents in 351 writing and such written consent is filed with the complaint; 352 (v) the plaintiff is or was the foster parent or guardian of the child and but for the 353 plaintiff’s role as foster parent or guardian, the plaintiff would not meet 1 or more of the 354 requirements of subsection (i); or 18 of 42 355 (vi) the plaintiff engaged in duress, coercion or threat of harm to establish any element of 356 de facto parentage as set forth in subsection (i). 357 If the court holds a hearing under this subsection, the hearing shall be held on an 358 expedited basis. 359 (h) A plaintiff may file and serve a motion seeking a temporary order of contact between 360 the subject child and the plaintiff contemporaneously with the complaint. After a hearing, the 361 court may enter a temporary order concerning contact between the child and the plaintiff. No 362 temporary order shall issue before a determination of standing; provided, however, that a hearing 363 on the motion may occur on the same date as any hearing under subsections (f) or (g). 364 (i) Subject to subsection (j), the court shall adjudicate a plaintiff with standing in a 365 proceeding commenced under this section to be a legal parent of the subject child if the plaintiff 366 demonstrates by clear and convincing evidence that: 367 (i) the plaintiff resided with the child as a regular member of the child’s household for at 368 least 3 years or 40 per cent of the child’s life, whichever is shorter; provided, however, that the 369 period is not less than 2 years except in extraordinary circumstances for good cause shown in the 370 court’s discretion; 371 (ii) the plaintiff engaged in consistent caregiving of the child, including, but not limited 372 to, shaping the child’s daily routine, addressing the child’s developmental needs and providing 373 for the child’s education and medical care, individually or cooperatively with another parent; 374 (iii) the plaintiff undertook full and permanent responsibilities of a parent of the child 375 without expectation or payment of financial compensation; 19 of 42 376 (iv) the plaintiff held out the child as the plaintiff’s child; 377 (v) the plaintiff established a bonded and dependent relationship with the child which is 378 parental in nature; 379 (vi) each parent of the child consented to the bonded and dependent relationship required 380 under clause (v). Consent shall include that each parent, over a period of not less than 6 months: 381 (A) held out the plaintiff as a parent of the child; and (B) engaged in shared decision making 382 with the plaintiff regarding significant issues of the child’s education, health and welfare; 383 provided, however, that the court may determine that a parent has impliedly consented where 384 that parent has not, without good cause, meaningfully engaged with the subject child through 385 direct contact, participation in decision making or regular financial support for a period of 2 386 years; provided further, that good cause may include evidence that the parent attempted to 387 meaningfully engage with the subject child by regularly requesting contact or participation in 388 decision making but was prevented by another person; and provided further, that a notarized 389 document affirming consent executed by a parent shall be evidence of that parent’s consent; and 390 (vii) adjudicating the plaintiff to be the child’s parent is in the best interest of the child. 391 In making this determination, the court shall consider evidence of past or present abuse by the 392 plaintiff toward a parent or the child as a factor contrary to the best interest of the child. A 393 finding by a preponderance of the evidence that the plaintiff engaged in duress, coercion or threat 394 of harm in order to establish any of the elements of clauses (i) through (vi), inclusive, shall be 395 considered evidence of abuse. A finding by a preponderance of the evidence that a pattern or 396 serious incident of abuse as defined in section 10 by the plaintiff against a parent or child has 397 occurred shall create a rebuttable presumption that it is not in the best interest of the child that 20 of 42 398 the plaintiff be adjudicated a parent. Where there is credible evidence of abuse and the court 399 adjudicates the plaintiff to be a parent of the subject child, the court shall make detailed written 400 findings on the presence and nature of the abuse, its effect on the child and its impact on the 401 plaintiff’s parenting ability. 402 (j) Subject to other limitations in this section, if in a proceeding to adjudicate the plaintiff 403 as a de facto parent, there is more than 1 defendant parent and the court determines that the 404 requirements of subsection (i) are satisfied, the court shall adjudicate parentage under subsection 405 (c) of section 26. 406 (k) The adjudication of a plaintiff as a de facto parent under this section shall not affect 407 the legal parentage of any other parent to the child and shall not be considered evidence of 408 parental unfitness of a defendant parent to the child. 409 (l) Custody, parenting time, visitation and child support shall be determined in 410 accordance with applicable laws, rules, regulations, orders and guidelines. 411 (m) Nothing in this section shall be interpreted to preclude an action in equity pursuant to 412 section 6 of chapter 215 to establish a third party right to visitation. 413 Section 26. (a) In a proceeding to adjudicate competing claims of, or challenges to, 414 parentage of a child by 2 or more persons, the court shall adjudicate parentage in the best interest 415 of the child, based on: 416 (i) the age of the child; 417 (ii) the length of time during which each person assumed the role of parent of the child; 418 (iii) the nature of the relationship between the child and each person; 21 of 42 419 (iv) the harm to the child if the relationship between the child and each person is not 420 recognized; 421 (v) the basis for each person’s claim to parentage of the child; and 422 (vi) other equitable factors arising from the disruption of the relationship between the 423 child and each person or the likelihood of other harm to the child. 424 (b) If a person challenges parentage based on the results of genetic testing, in addition to 425 the factors listed in subsection (a), the court shall consider: 426 (i) the facts surrounding the discovery that the person might not be a genetic parent of the 427 child; and 428 (ii) the length of time between the time that the person was placed on notice that the 429 person might not be a genetic parent and the commencement of the proceeding. 430 (c) The court may adjudicate a child to have more than 2 parents if the court finds that it 431 is in the best interest of the child. A finding of best interest of the child under this section does 432 not require a finding of unfitness of any parent or person seeking an adjudication of parentage. 433 (d) Custody, parenting time, visitation and child support shall be determined in 434 accordance with applicable laws, rules, regulations, orders and guidelines. 435 Section 27. (a) This section shall apply to nonmarital and marital children. This section 436 shall not apply to the birth of a child conceived by sexual intercourse or assisted reproduction by 437 surrogacy agreement under sections 28through 28P, inclusive. 22 of 42 438 (b) Venue for a proceeding to adjudicate parentage under this section shall be in the 439 county in which: (i) the child resides, was born or will be born; (ii) any parent or intended parent 440 resides; or (iii) a proceeding has been commenced for administration of the estate of a person 441 who is or may be a parent under this chapter. 442 (c) A donor is not a parent of a child conceived through assisted reproduction by 443 virtue of the donor’s genetic connection. A donor may not establish the donor's parentage by 444 signing an acknowledgment pursuant to this chapter. A donor shall not be entitled to notice in a 445 proceeding under this chapter. 446 (d) A person who consents to assisted reproduction with the intent to be a parent of a 447 child conceived by the assisted reproduction is a parent of the child. Consent to assisted 448 reproduction may be established either by: (i) a record signed by the person giving birth to a 449 child conceived by assisted reproduction and by an intended parent before, on, or after the birth 450 of the child; or (ii) a finding by the court, by a preponderance of the evidence, that (A) prior to 451 conception or birth of the child, the parties agreed that they would be parents of the child, or (B) 452 the person who seeks to be a parent of the child, together with the person giving birth, 453 voluntarily participated in and consented to the assisted reproduction that resulted in the 454 conception of the child. 455 (e)(i) Except as provided in paragraph (ii), a person who, at the time of a child’s birth, is 456 the spouse of the person who gave birth to the child by assisted reproduction may not challenge 457 their parentage of the child unless, not later than 2 years after the birth of the child, they 458 commence a proceeding to adjudicate their own parentage of the child and the court finds that 23 of 42 459 they did not consent to the assisted reproduction, before, on, or after birth of the child, or 460 withdrew consent under subsection (g). 461 (ii) A proceeding to adjudicate a spouse’s parentage of a child born by assisted 462 reproduction may be commenced at any time if the court determines that: (A) the spouse neither 463 provided a gamete for, nor consented to, the assisted reproduction; (B) the spouse and the person 464 who gave birth to the child have not cohabited since the probable time of assisted reproduction; 465 and (C) the spouse never openly held out the child as their child. This subsection applies to a 466 spouse’s dispute of parentage even if the spouse’s marriage is declared invalid after assisted 467 reproduction occurs. 468 (f) A person who has commenced an action for divorce, or a person who has been served 469 with a complaint for divorce, may begin assisted reproduction pursuant to this section, provided 470 at least 60 days have elapsed since service of the complaint. In such cases, the spouse shall not 471 be a parent of any child born as a result of the assisted reproduction unless both parties consent 472 in writing to be parents of that child after commencement of the divorce action. A married 473 person proceeding with assisted reproduction pursuant to this section shall not utilize gametes of 474 their spouse unless their spouse consents in writing to the use of their gametes for assisted 475 reproduction by the married person after commencement of a divorce action. 476 (g) A person who consents under subsection (d) to assisted reproduction may withdraw 477 consent any time before a transfer or implantation of gametes or embryos that results in a 478 pregnancy by giving notice in writing of their withdrawal of consent to the person who agreed to 479 give birth to a child conceived by assisted reproduction and to any clinic or healthcare provider 480 facilitating the assisted reproduction; provided, however, that failure to give notice to a clinic or 24 of 42 481 healthcare provider shall not affect a determination of parentage under this section. A person 482 who withdraws consent in accordance with this subsection is not a parent of the child under this 483 section. 484 (h)(i) If a person who intends to be a parent of a child conceived by assisted reproduction 485 dies during the period between the transfer or implantation of a gamete or embryo and the birth 486 of the child, the person’s death does not preclude the establishment of their parentage of the child 487 if the person otherwise would be a parent of the child under this section. 488 (ii) If a person who consented in writing to assisted reproduction by a person who agreed 489 to give birth to a child dies before a transfer or implantation of gametes or embryos, the deceased 490 person is a parent of a child conceived by the assisted reproduction only if: (A) either (1) the 491 person consented in writing that if assisted reproduction were to occur after their death, they 492 would be a parent of the child, or (2) the person’s intent to be a parent of a child conceived by 493 assisted reproduction after their death is established by a preponderance of the evidence; and (B) 494 either (1) the embryo is in utero not later than 36 months after the person’s death, or (2) the child 495 is born not later than 45 months after the person’s death. 496 (i) If due to a clinical or laboratory error the child is not genetically related to either the 497 intended parent or parents or any donor who donated to the intended parent or parents, the 498 intended parent or parents are the parents of the child unless otherwise determined by the court. 499 (j) Genetic testing, including genetic marker testing pursuant to section 11, shall not be 500 used: (i) to challenge the parentage of a person who is a parent under this section; or (ii) to 501 establish the parentage of a person who is a donor. 25 of 42 502 (k)(i) A person giving birth or a person who is or claims to be a parent under this section 503 may commence a proceeding prior to or after the birth of a child to obtain a judgment: (A) 504 declaring that the intended parent or parents are the parent or parents of the resulting child 505 immediately upon birth of the child and ordering that parental rights and responsibilities vest 506 exclusively in the intended parent or parents immediately upon birth of the child; and (B) 507 designating the contents of the birth certificate and directing the department of public health to 508 designate the intended parent or parents as the parent or parents of the resulting child. 509 (ii) A judgment issued before the birth of the resulting child shall not take effect until the 510 birth of the resulting child. Nothing in this subsection shall be construed to limit the court’s 511 authority to issue other orders under any other provision of the general laws. 512 (iii) Neither the state, the department of public health nor the hospital where the child is 513 or is expected to be born shall be a necessary party to a proceeding under this section. 514 (iv) The burden of proof in proceedings under this section shall be by a preponderance of 515 the evidence. 516 (l) On request of a party, the court shall close a proceeding under this section to the 517 general public. Section 13 shall govern segregation of, access to and inspection of complaints, 518 pleadings, papers, documents and reports filed in connection with an action pursuant to this 519 section, and docket entries. 520 (m) In a proceeding under this section, the court shall issue a final judgment adjudicating 521 whether a person alleged or claiming to be a parent is the parent of a child. On request of a party, 522 and subject to other applicable laws, the court in a proceeding under this section may order the 26 of 42 523 name of the child changed. If the final judgment is at variance with the child’s birth certificate, 524 the court shall order the department of public health to issue an amended birth certificate. 525 (n) Custody, parenting time, visitation, and child support for a nonmarital child shall be 526 determined in accordance with applicable laws, rules, regulations, orders and guidelines. 527 Section 28. (a) Sections 28 through 28P, inclusive, shall apply to nonmarital and marital 528 children. This section shall not apply to the birth of a child conceived by sexual intercourse or 529 assisted reproduction under section 27. 530 (b) Venue for proceedings under sections 28 through 28P, inclusive, shall be in the 531 county in which: (i) the child resides, is born or is expected to be born; (ii) a parent or intended 532 parent resides; (iii) a person acting as a surrogate resides; or (iv) a proceeding has been 533 commenced for administration of the estate of a person who is or may be a parent under this 534 chapter. 535 Section 28A. (a) In order to execute a surrogacy agreement to act as a surrogate, a person 536 shall: (i) be at least 21 years of age; (ii) have previously given birth to at least 1 child; (iii) 537 complete a medical evaluation by a licensed physician related to surrogacy; and (iv) complete a 538 mental health consultation by a licensed mental health professional that is independent of the 539 health care providers or facility undertaking any assisted reproduction procedure contemplated 540 by the surrogacy agreement. 541 (b) In order to execute a surrogacy agreement as an intended parent, whether or not 542 genetically related to the child, a person shall: (i) be at least 21 years of age; and (ii) complete a 543 mental health consultation by a licensed mental health professional that is independent of the 27 of 42 544 health care providers or facility undertaking any assisted reproduction procedure contemplated 545 by the surrogacy agreement. 546 Section 28B. A surrogacy agreement is enforceable only if it meets the following 547 requirements: 548 (a) the prospective surrogate, their spouse, if any, and each intended parent are parties to 549 the agreement; 550 (b) the prospective surrogate and each intended parent meet the eligibility requirements 551 of section 28A; 552 (c) at least 1 party is a resident of the commonwealth or, if no party is a resident of the 553 commonwealth, at least 1 medical evaluation, medical procedure or mental health consultation 554 under the agreement occurs in the commonwealth. 555 (d) the agreement is in writing and signed by all parties; 556 (e) the agreement is executed before a medical procedure attempting to achieve a 557 pregnancy in the prospective surrogate occurs, other than the medical evaluation and mental 558 health consultation required by section 28A and, in every instance, before transfer of embryos or 559 gametes; 560 (f) the signature of each party to the agreement is attested by a notary; 561 (g) each party to the agreement signs a written acknowledgment of having received a 562 copy of the agreement; 28 of 42 563 (h) the prospective surrogate, their spouse, if any, and each intended parent have 564 independent legal representation regarding the terms and potential legal consequences of the 565 surrogacy agreement, paid for by the intended parent or parents, and each counsel shall be 566 identified in the surrogacy agreement. A single attorney for the prospective surrogate and their 567 spouse and a single attorney for the intended parents is sufficient to meet this requirement, 568 provided the representation otherwise conforms to the Massachusetts Rules of Professional 569 Conduct; and 570 (i) records related to the medical evaluation and mental health consultations conducted 571 pursuant to section 28A shall be made available to the surrogate, the surrogate’s spouse, if any, 572 and each intended parent; provided, however, that all such records shall remain confidential 573 absent court order. 574 Section 28C. A surrogacy agreement is enforceable only if it contains the following 575 terms: 576 (a) The surrogate: 577 (i) shall undergo assisted reproduction and attempt to carry and give birth to any resulting 578 child; 579 (ii) except as otherwise provided in sections 28I, 28M and 28N, has no claim to parentage 580 of any resulting child; and 581 (iii) acknowledges the exclusive parentage of the intended parent or parents of all 582 resulting children. 583 (b) If the surrogate is married, their spouse: 29 of 42 584 (i) acknowledges and agrees to abide by all obligations imposed on the surrogate by the 585 terms of the surrogacy agreement; 586 (ii) except as otherwise provided in sections 28I, 28M and 28N, has no claim to parentage 587 of any resulting child; and 588 (iii) acknowledges the exclusive parentage of the intended parent or parents of all 589 resulting children. 590 (c) The intended parent or, if there are more than 1 intended parents, each parent jointly 591 and severally: 592 (i) except as otherwise provided in sections 28G, 28J, 28M and 28N, agree to be the 593 exclusive parent or parents and accept parental rights and responsibilities of all resulting children 594 regardless of the number of children born or the gender or condition of each child; and 595 (ii) except as otherwise provided in sections 28G, 28J, 28M and 28N, agree to assume 596 responsibility for the financial support of all resulting children immediately upon the birth of the 597 children regardless of the number of children born or the gender or condition of each child. 598 (d) The intended parent or parents shall pay for all surrogacy-related expenses of the 599 surrogate, including expenses for healthcare provided for assisted reproduction, prenatal care, 600 labor and delivery and the medical expenses of all resulting children, that are not covered by 601 insurance; provided, however, that this subsection shall not be construed to supplant any health 602 insurance coverage that is otherwise available to the surrogate or an intended parent for the 603 coverage of healthcare costs; provided further, however, that this subsection shall not change the 30 of 42 604 health insurance coverage of the surrogate or the responsibility of the insurance company to pay 605 benefits under a policy that covers a surrogate. 606 (e) The surrogacy agreement shall not infringe on the rights of the surrogate to make all 607 health and welfare decisions regarding themselves, their body and their pregnancy throughout 608 the duration of the surrogacy arrangement, including during attempts to become pregnant, 609 pregnancy, labor and delivery and post-partum. The surrogacy agreement shall not infringe upon 610 the right of the surrogate to autonomy in medical decision making, including, but not limited to, 611 whether to consent to a caesarean section and whether to undergo multiple embryo transfers. 612 Except as otherwise provided by law, any written or oral agreement purporting to waive or limit 613 these rights are void as against public policy. 614 (f) The surrogacy agreement shall include information about each party’s right to 615 terminate the surrogacy agreement. 616 (g) Rights created under a surrogacy agreement are not assignable and there is no third- 617 party beneficiary other than the child. 618 (h) A surrogacy agreement may provide for: (i) payment of consideration and reasonable 619 expenses; and (ii) reimbursement of specific expenses if the agreement is terminated under this 620 chapter. 621 Section 28D. Unless a surrogacy agreement expressly provides otherwise: 622 (a) The marriage of the surrogate or of an intended parent after the surrogacy agreement 623 has been signed by all parties shall not affect the validity of the surrogacy agreement, the 624 surrogate or intended parent’s spouse’s consent to the surrogacy agreement is not required and 31 of 42 625 the surrogate or intended parent’s spouse shall not be a presumed parent of a child conceived by 626 assisted reproduction under the surrogacy agreement. 627 (b) The divorce or annulment of the surrogate or of an intended parent after the surrogacy 628 agreement has been signed by all parties shall not affect the validity of the surrogacy agreement. 629 Section 28E. During the period after the execution of a surrogacy agreement until the 630 occurrence of the earlier of the date of termination of the surrogacy agreement pursuant its terms 631 or 180 days after the birth of a child conceived by assisted reproduction under the surrogacy 632 agreement, the court conducting a proceeding under sections 28 through 28P, inclusive, shall 633 have exclusive, continuing jurisdiction over all matters arising out of the surrogacy agreement; 634 provided, however, that the court shall not have jurisdiction over a child custody or child support 635 proceeding if jurisdiction is not otherwise authorized by the laws of the commonwealth. 636 Section 28F. (a) A party to a gestational surrogacy agreement may terminate the 637 agreement at any time before an embryo transfer or implantation by giving written notice of 638 termination to all other parties. If an embryo transfer or implantation does not result in 639 pregnancy, a party may terminate the agreement at any time before a subsequent embryo transfer 640 or implantation. 641 (b) Unless a gestational surrogacy agreement provides otherwise, upon termination of the 642 agreement under subsection (a), the parties are released from the agreement, except that the 643 intended parent or parents remain responsible for expenses that are reimbursable under the 644 agreement and incurred by the gestational surrogate through the date of the termination of the 645 agreement. 32 of 42 646 (c) Except in a case involving fraud, neither a gestational surrogate nor their spouse or 647 former spouse, if any, is liable to the intended parent or parents for punitive or liquidated 648 damages for terminating a gestational surrogacy agreement. 649 Section 28G. (a) Except as otherwise provided in subsection (c), subsection (b) of section 650 28H or section 28J, upon the birth of a child conceived by assisted reproduction under a 651 gestational surrogacy agreement, each intended parent is, by operation of law, a parent of the 652 child. Parental rights shall vest exclusively in the intended parent or parents immediately upon 653 birth of the resulting child. 654 (b) Except as otherwise provided in subsection (c) or section 28J, neither a person acting 655 as gestational surrogate nor their spouse or former spouse, if any, is a parent of the child. 656 (c) If a child is alleged to be a genetic child of the gestational surrogate, the court shall, 657 upon finding sufficient evidence, order genetic testing of the child. If the child is a genetic child 658 of the gestational surrogate, parentage shall be determined in accordance with sections 1 through 659 27. 660 (d) Except as otherwise provided in subsection (c) or subsection (b) of section 28H or 661 section 28I, if, due to a clinical or laboratory error, a child conceived by assisted reproduction 662 under a gestational surrogacy agreement is not genetically related to an intended parent or a 663 donor who donated to the intended parent or parents, each intended parent, and not the person 664 acting as gestational surrogate and their spouse or former spouse, if any, is a parent of the child. 665 Section 28H. (a) Section 28G applies to an intended parent even if the intended parent 666 dies during the period between the transfer or implantation of a gamete or embryo and the birth 667 of the child. 33 of 42 668 (b) Except as otherwise provided in section 28J, an intended parent is not a parent of a 669 child conceived by assisted reproduction under a gestational surrogacy agreement if the intended 670 parent dies before the transfer or implantation of a gamete or embryo unless: (i) the surrogacy 671 agreement provides otherwise; and (ii) the transfer of a gamete or embryo occurs not later than 672 36 months after the death of the intended parent or birth of the child occurs not later than 45 673 months after the death of the intended parent. 674 Section 28I. (a) Except as otherwise provided in subsection (c) of section 28G or 675 section 28J, before, on or after the birth of a child conceived by assisted reproduction under a 676 gestational surrogacy agreement, any party to the agreement may commence a proceeding for a 677 judgment of parentage: 678 (i) declaring that each intended parent is a parent of the child and ordering that parental 679 rights and duties vest immediately on the birth of the child exclusively in each intended parent; 680 (ii) declaring that the gestational surrogate and their spouse or former spouse, if any, are 681 not the parents of the child; 682 (iii) designating the content of the birth record in accordance with chapter 46 and 683 directing the department of public health to designate each intended parent as a parent of the 684 child; 685 (iv) to protect the privacy of the child and the parties, declaring that the court record and 686 related pleadings be impounded in accordance with this section; 687 (v) if necessary, ordering that the child be surrendered to the intended parent or parents; 34 of 42 688 (vi) if necessary, ordering that the hospital where the child will be or has been born, treat 689 the intended parent or parents as the sole legal parent or parents for the purpose of naming and 690 medical decisions; and 691 (vii) for other relief the court determines necessary and proper. 692 (b) The court may issue an order or judgment under subsection (a) before or after the 693 birth of the child, as requested by the parties. 694 (c) The state, the department of public health, the town or city clerk and the hospital 695 where the child is born or is to be born are not necessary parties to a proceeding under subsection 696 (a). Any party to the surrogacy agreement not joining in the action shall be provided with notice 697 of the proceeding. 698 (d) A complaint under this section shall include: (i) a copy of the executed surrogacy 699 agreement; (ii) sworn affidavit of the assisted reproductive physician confirming that the child 700 was born pursuant to assisted reproduction; and (iii) certifications from the attorneys 701 representing the intended parent or parents and the gestational surrogate that the requirements of 702 sections 28A, 28B and 28C have been met. A complaint supported by such affidavit and 703 certifications shall be sufficient to establish parentage, and a hearing shall not be required unless 704 the court requires additional information which cannot reasonably be ascertained without a 705 hearing. 706 (e) Upon a finding by a preponderance of the evidence that the complaint satisfies 707 subsection (d), a court shall expeditiously, but no later than 60 days from the docketing of the 708 complaint, issue a judgment of parentage. Parentage judgments issued under this section shall 709 conclusively establish or affirm, where applicable, the parent-child relationship for all purposes. 35 of 42 710 Custody, parenting time, visitation and child support for a nonmarital child shall be determined 711 in accordance with applicable laws, rules, regulations, orders and guidelines. 712 (f) In the event the certification required by subsection (d) of this section cannot be made 713 because of a technical or nonmaterial deviation from the requirements of sections 28A, 28B and 714 28C, the court may nevertheless enforce the agreement and issue a judgment of parentage if the 715 court determines the agreement is in substantial compliance with the requirements of said 716 sections. 717 (g) On request of a party, the court shall close a proceeding under this section to the 718 general public. All complaints, pleadings, papers or documents filed pursuant to this section, and 719 docket entries, shall not be available for inspection unless the court where such records are kept, 720 for good cause shown, otherwise orders or unless requested by the child or the parties. All such 721 complaints, pleadings, papers or documents shall be segregated. 722 Section 28J. (a) A gestational surrogacy agreement that substantially complies with 723 sections 28A, 28B and 28C is enforceable. 724 (b) If a child was conceived by assisted reproduction under a gestational surrogacy 725 agreement that does not substantially comply with sections 28A, 28B and 28C, the court shall 726 determine the rights and duties of the parties to the agreement consistent with the intent of the 727 parties at the time of execution of the agreement. Each party to the agreement and any person 728 who at the time of the execution of the agreement was a spouse of a party to the agreement has 729 standing to commence a proceeding to adjudicate an issue related to the enforcement of the 730 agreement. 36 of 42 731 (c) Except as expressly provided in a gestational surrogacy agreement or subsection (d) 732 or (e) of this section, if the agreement is breached by the gestational surrogate or 1 or more 733 intended parents, the non-breaching party is entitled to the remedies available at law or in equity. 734 (d) Specific performance is not a remedy available for breach by a gestational surrogate 735 of a provision in the agreement that the gestational surrogate be impregnated, terminate or not 736 terminate a pregnancy, or submit to medical procedures. 737 (e) Except as otherwise provided in subsection (d), if an intended parent is determined to 738 be a parent of the child, specific performance is a remedy available for: 739 (i) breach of the agreement by a gestational surrogate which prevents the intended parent 740 from exercising, immediately on birth of the child, the full rights of parentage; or 741 (ii) breach by the intended parent which prevents the intended parent’s acceptance, 742 immediately on birth of the child conceived by assisted reproduction under the agreement, of the 743 duties of parentage. 744 Section 28K. (a) Except as otherwise provided in section 28N, a genetic surrogacy 745 agreement shall be validated by a probate and family court. A proceeding to validate the 746 agreement shall be commenced before assisted reproduction related to the surrogacy agreement. 747 A complaint under this section shall include: (i) a copy of the executed surrogacy agreement; and 748 (ii) certifications from the attorneys representing the intended parent or parents and the genetic 749 surrogate that the requirements of sections 28A, 28B and 28C have been met. 37 of 42 750 (b) The court shall issue an order validating a genetic surrogacy agreement, within 60 751 days of the commencement of such a proceeding, if the court finds by a preponderance of the 752 evidence that: 753 (i) sections 28A, 28B and 28C are satisfied; and 754 (ii) all parties entered into the agreement voluntarily and understand its terms. 755 (c) A person who terminates a genetic surrogacy agreement under section 28L shall file 756 notice of the termination with the court and parties. On receipt of the notice, the court shall 757 vacate any order issued under subsection (b). 758 Section 28L. (a) An intended parent or genetic surrogate who is a party to the agreement 759 may terminate the agreement at any time before a gamete or embryo transfer or implantation by 760 giving notice of termination in writing to all other parties. If a gamete or embryo transfer or 761 implantation does not result in a pregnancy, a party may terminate the agreement at any time 762 before a subsequent gamete or embryo transfer or implantation. The party’s signature on a notice 763 of termination shall be attested by a notary. 764 (b) An intended parent or genetic surrogate who terminates the agreement after the court 765 issues an order validating the agreement under sections 28K or 28N, but before the genetic 766 surrogate becomes pregnant by means of assisted reproduction, shall also file notice of the 767 termination with such court. 768 (c) A person may not terminate a validated genetic surrogacy agreement if a gamete or 769 embryo transfer or implantation has resulted in a pregnancy. 38 of 42 770 (d) On termination of the genetic surrogacy agreement, the parties are released from all 771 obligations under the agreement except that any intended parent or parents remains responsible 772 for all expenses incurred by the genetic surrogate through the date of the termination which are 773 reimbursable under the agreement. Unless the agreement provides otherwise, the genetic 774 surrogate is not entitled to any non-expense related compensation paid for acting as a surrogate. 775 (e) Except in a case involving fraud, neither a genetic surrogate nor their spouse or 776 former spouse, if any, is liable to the intended parent or parents for punitive or liquidated 777 damages, for terminating a genetic surrogacy agreement under this section. 778 Section 28M. (a) On birth of a child conceived by assisted reproduction under a genetic 779 surrogacy agreement validated under section 28K or 28N, each intended parent is, by operation 780 of law, a parent of the resulting child. 781 (b) On birth of a child conceived by assisted reproduction under a genetic surrogacy 782 agreement validated under section 28K or 28N of this chapter, the intended parent or parents 783 shall file a notice with the court that validated the agreement that a child has been born as a result 784 of assisted reproduction. Upon receiving such notice, the court shall immediately, or as soon as 785 practicable, issue an order without notice and hearing: 786 (i) declaring that any intended parent or parents is a parent of a child conceived by 787 assisted reproduction under the agreement and ordering that parental rights and duties vest 788 exclusively in any intended parent; 789 (ii) declaring that the genetic surrogate and their spouse or former spouse, if any, are not 790 parents of the child; 39 of 42 791 (iii) designating the contents of the birth certificate in accordance with chapter 46 and 792 directing the department of public health to designate any intended parent as a parent of the 793 child; 794 (iv) to protect the privacy of the child and the parties, declaring that the court record and 795 related pleadings be impounded in accordance with section 28I; 796 (v) if necessary, ordering that the child be surrendered to the intended parent or parents; 797 and 798 (vi) for other relief the court determines necessary and proper. 799 (c) Except as otherwise provided in subsection (d) or section 28O, if, due to a clinical or 800 laboratory error, a child conceived by assisted reproduction under a genetic surrogacy agreement 801 is not genetically related to an intended parent or a donor who donated to the intended parent or 802 parents, each intended parent, and not the genetic surrogate and their spouse or former spouse, if 803 any, is a parent of the child. 804 (d) If a child born to a genetic surrogate is alleged not to have been conceived by assisted 805 reproduction, the court may, upon finding sufficient evidence, order genetic testing to determine 806 the genetic parentage of the child. If the child was not conceived by assisted reproduction and the 807 second source of genetic material is the spouse of the genetic surrogate, then the surrogate and 808 the spouse shall be found to be the parents of the child. If the second genetic source is a person 809 other than the spouse of the surrogate, then parentage shall be determined as provided in sections 810 1 through 27. However, if the second genetic source is an intended parent, the court, in its sole 811 discretion, may determine parentage under said sections 1 through 27. Unless the genetic 812 surrogacy agreement provides otherwise, the genetic surrogate is not entitled to any non-expense 40 of 42 813 related compensation paid for acting as a surrogate if the child was not conceived by assisted 814 reproduction. 815 (e) If an intended parent fails to file the notice required under subsection (b) of this 816 section, the person acting as genetic surrogate may file with the court, not later than 60 days after 817 the birth of a child conceived by assisted reproduction under the genetic surrogacy agreement, 818 notice that the child has been born to the genetic surrogate. On proof of a court order issued 819 under sections 28K or 28N validating the agreement, the court shall order that each intended 820 parent is a parent of the child. 821 Section 28N. (a) A genetic surrogacy agreement, whether or not in writing, that is not 822 validated under section 28K is enforceable only to the extent provided in this section and section 823 28P. 824 (b) If all parties agree, a court may validate a genetic surrogacy agreement after assisted 825 reproduction has occurred but before the birth of a child conceived by assisted reproduction 826 under the agreement if the court finds by a preponderance of the evidence that: 827 (i) sections 28A, 28B or 28C are satisfied; and 828 (ii) all parties entered into the agreement voluntarily and understand its terms. 829 (c) If a child conceived by assisted reproduction under a genetic surrogacy agreement that 830 is not validated under section 28K or subsection (b) is born, the genetic surrogate is not 831 automatically a parent and the court shall adjudicate parentage of the child based on the best 832 interest of the child, taking into account the factors in subsection (a) of section 26 and the intent 833 of the parties at the time of the execution of the agreement. 41 of 42 834 (d) The parties to a genetic surrogacy agreement have standing to commence a 835 proceeding to adjudicate parentage under this section. 836 Section 28O. (a) Except as otherwise provided in section 28M or 28N on birth of a child 837 conceived by assisted reproduction under a genetic surrogacy agreement, each intended parent is, 838 by operation of law, a parent of the child, notwithstanding the death of an intended parent during 839 the period between the transfer of a gamete or embryo and the birth of the child. 840 (b) Except as otherwise provided in section 28M or 28N, an intended parent is not a 841 parent of a child conceived by assisted reproduction under a genetic surrogacy agreement if the 842 intended parent dies before the transfer of a gamete or embryo unless: (i) the agreement provides 843 otherwise; and (ii) the transfer of the gamete or embryo occurs not later than 36 months after the 844 death of the intended parent, or birth of the child occurs not later than 45 months after the death 845 of the intended parent. 846 Section 28P. (a) Subject to subsection (d) of section 28L, if a genetic surrogacy 847 agreement is breached by a genetic surrogate or 1 or more intended parents, the non-breaching 848 party is entitled to the remedies available at law or in equity. 849 (b) Specific performance is not a remedy available for breach by a genetic surrogate of a 850 requirement of a validated or nonvalidated genetic surrogacy agreement that the genetic 851 surrogate be impregnated, terminate or not terminate a pregnancy, or submit to medical 852 procedures. 853 (c) Except as otherwise provided in subsection (b), specific performance is a remedy 854 available for: (i) breach of a validated genetic surrogacy agreement by a genetic surrogate of a 855 requirement which prevents an intended parent from exercising, immediately upon birth of the 42 of 42 856 child, the full rights of parentage; or (ii) breach by an intended parent which prevents the 857 intended parent’s acceptance, immediately upon birth of the child, of the duties of parentage. 858 SECTION 63. The trial court department, in accordance with section 24 of chapter 209C 859 of the General Laws, shall update existing forms and promulgate new forms as necessary for use 860 under said chapter 209C, which shall be in such form and language to permit a person to prepare 861 and file such forms pro se. NO SECTION 64. 862 SECTION 65. This act shall take effect on January 1, 2025. 863 SECTION 66. Section 1 of chapter 46 of the General Laws, as appearing in the 2020 864 Official Edition, is hereby amended by striking out the second paragraph and inserting in place 865 thereof the following paragraph: - 866 In the record of births, name, date of birth, place of birth, and sex of child; legal names, 867 dates of birth, residences, places of birth and surname at birth or adoption of parents. In the 868 record of birth of a child born to parents not married to each other, the name of and other facts 869 relating to the other parent or parents shall not be recorded except as provided in section 2 of 870 chapter 209C where parentage has been acknowledged or adjudicated under the laws of the 871 commonwealth or under the law of any other jurisdiction.