HF 1140

as introduced - 91st Legislature (2019 - 2020) Posted on 03/14/2019 04:27pm

A bill for an act
relating to children; establishing requirements for gestational carrier contracts;
proposing coding for new law in Minnesota Statutes, chapter 257.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

Section 1.

new text begin [257.86] DEFINITIONS.
new text end

new text begin Subdivision 1. new text end

new text begin Scope. new text end

new text begin The definitions in this section apply to sections 257.86 to 257.97.
new text end

new text begin Subd. 2. new text end

new text begin Donor. new text end

new text begin "Donor" means an individual who is not an intended parent who
contributes a gamete or gametes for the purpose of in vitro fertilization or implantation in
another.
new text end

new text begin Subd. 3. new text end

new text begin Embryo. new text end

new text begin "Embryo" means a fertilized egg prior to 14 days of development.
new text end

new text begin Subd. 4. new text end

new text begin Embryo transfer. new text end

new text begin "Embryo transfer" means all medical and laboratory
procedures that are necessary to effectuate the transfer of an embryo into the uterine cavity.
new text end

new text begin Subd. 5. new text end

new text begin Gamete. new text end

new text begin "Gamete" means a sperm or an egg.
new text end

new text begin Subd. 6. new text end

new text begin Gestational carrier. new text end

new text begin "Gestational carrier" means a woman who agrees to engage
in a gestational carrier arrangement.
new text end

new text begin Subd. 7. new text end

new text begin Gestational carrier arrangement. new text end

new text begin "Gestational carrier arrangement" means
the process by which a woman attempts to carry and give birth to a child created through
in vitro fertilization using one or more gametes procured or provided by the intended parents.
new text end

new text begin Subd. 8. new text end

new text begin Gestational carrier contract. new text end

new text begin "Gestational carrier contract" means a written
agreement regarding a gestational carrier arrangement.
new text end

new text begin Subd. 9. new text end

new text begin Health care provider. new text end

new text begin "Health care provider" means a person who is duly
licensed to provide health care, including medical, psychological, or counseling professionals.
new text end

new text begin Subd. 10. new text end

new text begin Intended parent. new text end

new text begin "Intended parent" means a person who enters into a
gestational carrier contract with a gestational carrier prior to the initiation of the pregnancy
pursuant to which the person will be the legal parent of the resulting child. In the case of a
married couple, any reference to an intended parent includes both parties to the marriage
for all purposes of section 257.86 to 257.97, regardless of gender.
new text end

new text begin Subd. 11. new text end

new text begin In vitro fertilization. new text end

new text begin "In vitro fertilization" means medical and laboratory
procedures that are necessary to effectuate the extracorporeal fertilization of egg and sperm.
new text end

new text begin Subd. 12. new text end

new text begin Medical evaluation. new text end

new text begin "Medical evaluation" means an evaluation by and
consultation with a physician conducted according to the recommended guidelines published
and in effect at the time of the evaluation by the American Society for Reproductive Medicine
and the American College of Obstetricians and Gynecologists.
new text end

new text begin Subd. 13. new text end

new text begin Mental health evaluation. new text end

new text begin "Mental health evaluation" means an evaluation
by and consultation with a mental health professional conducted according to the
recommended guidelines published and in effect at the time of the evaluation by the American
Society for Reproductive Medicine and the American College of Obstetricians and
Gynecologists.
new text end

new text begin Subd. 14. new text end

new text begin Physician. new text end

new text begin "Physician" means a person licensed to practice medicine.
new text end

Sec. 2.

new text begin [257.87] RIGHTS OF PARENTAGE.
new text end

new text begin (a) Except as provided in sections 257.86 to 257.97, a woman who gives birth to a child
is presumed to be the mother of that child for purposes of state law.
new text end

new text begin (b) In the case of a gestational carrier arrangement satisfying the requirements of
paragraph (d):
new text end

new text begin (1) the intended parent is the parent of the child for purposes of state law immediately
upon the birth of the child;
new text end

new text begin (2) the child is considered the child of the intended parent for purposes of state law;
new text end

new text begin (3) parental rights vest in the intended parent;
new text end

new text begin (4) sole custody, care, and control of the child shall rest solely with the intended parent
immediately upon the birth of the child; and
new text end

new text begin (5) immediately upon the birth of the child, neither the gestational carrier nor spouse, if
any, is the parent of the child for purposes of state law.
new text end

new text begin (c) If a gestational carrier arrangement complying with paragraph (d) exists and there
is a laboratory error in which the resulting child is not genetically related to either of the
intended parents, the intended parent is the parent of the child for purposes of state law
unless otherwise determined by a court of competent jurisdiction. An action under this
paragraph can only be brought by a genetic parent within 60 days of the date of the child's
birth.
new text end

new text begin (d) The parties to a gestational carrier arrangement assume the rights and obligations of
paragraphs (b) and (c) if:
new text end

new text begin (1) the gestational carrier satisfies the eligibility requirements in section 257.88, paragraph
(a);
new text end

new text begin (2) the intended parent satisfies the eligibility requirements set forth in section 257.88,
paragraph (b); and
new text end

new text begin (3) the gestational carrier arrangement occurs pursuant to a gestational carrier contract
meeting the requirements in section 257.89.
new text end

Sec. 3.

new text begin [257.88] ELIGIBILITY.
new text end

new text begin (a) A gestational carrier satisfies the requirements of sections 257.86 to 257.97 if, at the
time the gestational carrier contract is executed, she:
new text end

new text begin (1) is at least 21 years of age;
new text end

new text begin (2) has given birth to at least one child;
new text end

new text begin (3) has completed a medical evaluation relating to the anticipated pregnancy and provides
a written statement from the examining physician that states that it is reasonably likely that
she can successfully carry a pregnancy to full term without any complications that would
threaten the health of the gestational carrier or resulting child;
new text end

new text begin (4) has completed a mental health evaluation relating to the anticipated gestational carrier
arrangement;
new text end

new text begin (5) has undergone legal consultation with separate, independent legal counsel regarding
the terms of the gestational carrier contract and the potential legal consequences of the
gestational carrier arrangement; and
new text end

new text begin (6) has obtained, or obtains prior to the embryo transfer, a health insurance policy that
covers major medical treatments and hospitalization and extends throughout the duration
of the expected pregnancy and for eight weeks after the birth of the child; the policy may
be procured by the intended parent on behalf of the gestational carrier pursuant to the
gestational carrier contract or the intended parent may self-insure by depositing sufficient
funds into escrow to pay for all reasonably expected medical expenses prior to the date of
the first embryo transfer.
new text end

new text begin (b) The intended parent satisfies the requirements of sections 257.86 to 257.97 if, at the
time the gestational carrier contract is executed, the parent:
new text end

new text begin (1) provides the gametes that will result in an embryo that the gestational carrier will
attempt to carry to term;
new text end

new text begin (2) requires the services of the gestational carrier in order to have a child as evidenced
by a qualified physician's affidavit attached to the gestational carrier contract;
new text end

new text begin (3) has completed a mental health evaluation relating to the anticipated gestational carrier
arrangement; and
new text end

new text begin (4) has undergone legal consultation with separate, independent legal counsel regarding
the terms of the gestational carrier contract and the potential legal consequences of the
gestational carrier arrangement.
new text end

Sec. 4.

new text begin [257.89] REQUIREMENTS FOR GESTATIONAL CARRIER CONTRACT.
new text end

new text begin (a) A gestational carrier contract is enforceable in Minnesota if:
new text end

new text begin (1) it meets the contractual requirements in paragraphs (b) and (c); and
new text end

new text begin (2) it contains, at a minimum, the terms in paragraph (d).
new text end

new text begin (b) A gestational carrier contract must be:
new text end

new text begin (1) in writing;
new text end

new text begin (2) executed prior to the commencement of any medical procedures intended to initiate
a pregnancy in furtherance of the gestational carrier arrangement, other than medical or
mental health evaluations necessary to determine eligibility of the parties under section
257.88, by a gestational carrier meeting the eligibility requirements of section 257.88,
paragraph (a), and, if married, the gestational carrier's spouse; and by the intended parent
or parents meeting the eligibility requirements of section 257.88, paragraph (b). In the event
an intended parent is married, both married intended parents must execute the gestational
carrier contract; and
new text end

new text begin (3) notarized or witnessed by two disinterested competent adults.
new text end

new text begin (c) A gestational carrier contract under paragraph (b) is not valid unless:
new text end

new text begin (1) the gestational carrier and the intended parent have been represented by separate,
independent legal counsel in all matters concerning the gestational carrier arrangement and
the gestational carrier contract; and
new text end

new text begin (2) the gestational carrier and the intended parent have signed a written acknowledgment
of their receipt of information about the legal, financial, and contractual rights, expectations,
penalties, and obligations of the carrier agreement.
new text end

new text begin (d) A gestational carrier contract shall include:
new text end

new text begin (1) the express written agreement of the gestational carrier to:
new text end

new text begin (i) undergo embryo transfer and attempt to carry and give birth to the child; and
new text end

new text begin (ii) surrender custody of all resulting children to the intended parent immediately upon
the birth of the child or children;
new text end

new text begin (2) if the gestational carrier is married, the express agreement of the gestational carrier's
spouse to:
new text end

new text begin (i) support, facilitate, and be jointly bound by the obligations imposed on the gestational
carrier pursuant to the terms of the gestational carrier contract; and
new text end

new text begin (ii) surrender custody of all resulting children to the intended parent immediately upon
the birth of the resulting child or children;
new text end

new text begin (3) the right of the gestational carrier to use the services of a physician of her choosing,
after consultation with the intended parent, to provide her care during the pregnancy; and
new text end

new text begin (4) the express written agreement of the intended parent to:
new text end

new text begin (i) accept custody of the resulting child or children immediately upon the child's or
children's birth regardless of number, gender, or mental or physical condition; and
new text end

new text begin (ii) assume sole responsibility for the support of the child or children immediately upon
the birth of the child or children.
new text end

new text begin (e) A gestational carrier contract is enforceable in Minnesota even though it contains
one or more of the following provisions:
new text end

new text begin (1) the gestational carrier's agreement to undergo all medical examinations, treatments,
and fetal monitoring procedures that the physician recommends for the success of the
pregnancy;
new text end

new text begin (2) the gestational carrier's agreement to abstain from any activities that the intended
parent or the physician reasonably believes to be harmful to the pregnancy and future health
of the child, including but not limited to smoking, drinking alcohol, using nonprescribed
drugs, using prescription drugs not authorized by a physician aware of the gestational carrier's
pregnancy, exposure to radiation, or any other activities proscribed by a health care provider;
and
new text end

new text begin (3) the agreement of the intended parent to pay for or reimburse the gestational carrier
for reasonable expenses including but not limited to medical, legal, or other professional
expenses related to the gestational carrier arrangement and the gestational carrier contract.
new text end

Sec. 5.

new text begin [257.90] DUTY TO SUPPORT.
new text end

new text begin (a) A person who is considered to be the parent of the child under section 257.87 is
obligated to support the child.
new text end

new text begin (b) A breach of the gestational carrier contract by the intended parent does not relieve
the intended parent of the support obligation imposed by sections 257.86 to 257.97.
new text end

new text begin (c) A gamete donor is not a parent if the donor has waived any and all rights to the
donated gametes and any resultant embryos or children, either in a record with or between
(1) the donor and a medical or other storage facility or (2) the intended parent, whether the
donor is anonymous or is known to the intended parent. If the requirements of this section
are met, a donor has no obligation to pay child support for a child born from the donor's
gamete donation.
new text end

Sec. 6.

new text begin [257.91] ESTABLISHMENT OF THE PARENT-CHILD RELATIONSHIP.
new text end

new text begin (a) For purposes of the Parentage Act, sections 257.51 to 257.75, the parent-child
relationship that arises immediately upon the birth of the child pursuant to section 257.88
is established if, no later than five business days after the birth of a child born through a
gestational carrier arrangement, the attorneys representing both the gestational carrier and
the intended parent provide written certification that the parties entered into the gestational
carrier contract intending to satisfy the requirements of section 257.89 with respect to the
child.
new text end

new text begin (b) The attorney certifications required by paragraph (a) shall be filed on forms prescribed
by the Department of Health.
new text end

new text begin (c) The attorney certifications required by paragraph (a) must establish the parties'
compliance with all of the requirements of the Parentage Act in a manner consistent with
the requirements of the Parentage Act, if any.
new text end

new text begin (d) The attorney certifications required by paragraph (a) are effective for all purposes
if completed no later than five business days after the child's birth.
new text end

new text begin (e) When the attorney certifications required by paragraph (a) are completed, all hospital
and state representatives or employees shall complete all birth records and the original birth
certificate of the child to reflect the intended parent, and only the intended parent, as the
child's parent on the records and certificate.
new text end

Sec. 7.

new text begin [257.92] ENTRY OF JUDGMENT OF PARENTAGE.
new text end

new text begin (a) A judgment establishing the intended parent's exclusive legal parentage shall be
entered by the court administer within five business days after issuance of a court order to
that effect or after the following conditions are met:
new text end

new text begin (1) the attorneys representing both parties have complied with all of the certification
requirements in section 257.91;
new text end

new text begin (2) one of the parties has filed with the court a petition to establish parentage; and
new text end

new text begin (3) after the birth of the child or children born through the gestational carrier arrangement,
the attorneys for the parties file with the court administrator a joint affidavit of compliance
with the certification requirements set forth in section 257.91.
new text end

new text begin (b) A judgment entered and docketed under this subdivision has the same effect and is
subject to the same procedures, defenses, and proceedings as any other judgment in district
court.
new text end

Sec. 8.

new text begin [257.93] EFFECT OF GESTATIONAL CARRIER'S SUBSEQUENT
MARRIAGE.
new text end

new text begin Subsequent marriage of the gestational carrier does not affect the validity of an existing
gestational carrier contract, her legal spouse's consent to the contract is not required, and
her legal spouse is not a presumed parent of the resulting child.
new text end

Sec. 9.

new text begin [257.94] IMMUNITIES.
new text end

new text begin Except as provided in sections 257.86 to 257.97, no person is civilly or criminally liable
for nonnegligent actions taken pursuant to the requirements of sections 257.86 to 257.97.
This provision does not prevent liability or actions between or among the parties, including
actions brought by or on behalf of the child, based on negligent, reckless, willful, or
intentional acts that result in damages to any party.
new text end

Sec. 10.

new text begin [257.95] NONCOMPLIANCE.
new text end

new text begin Noncompliance by the gestational carrier or the intended parent or parents occurs if that
party breaches a provision of the gestational carrier contract or fails to comply with any of
the requirements in sections 257.86 to 257.97.
new text end

Sec. 11.

new text begin [257.96] EFFECT OF NONCOMPLIANCE.
new text end

new text begin (a) In the event of noncompliance, as defined in section 257.95, a court of competent
jurisdiction shall determine the rights and obligations of the parties to any gestational carrier
agreement based on the other provisions of the Parentage Act, sections 257.51 to 257.75,
specifically including, but not limited to, the best interests of the child.
new text end

new text begin (b) There shall be no specific performance remedy available for a breach by the
gestational carrier of a gestational carrier contract term that requires her to be impregnated.
new text end

Sec. 12.

new text begin [257.97] DAMAGES.
new text end

new text begin (a) Except as expressly provided in the gestational carrier contract, the intended parent
or parents are entitled to all remedies available at law or equity.
new text end

new text begin (b) Except as expressly provided in the gestational carrier contract, the gestational carrier
is entitled to all remedies available at law or equity.
new text end

Sec. 13.

new text begin [257.98] IRREVOCABILITY.
new text end

new text begin No action to invalidate a gestational carrier arrangement meeting the requirements of
section 257.87, paragraph (d), or to challenge the rights of parentage established under
section 257.87 and the Parentage Act, sections 257.51 to 257.75, may be commenced after
12 months from the date of birth of the child.
new text end

Sec. 14. new text begin EFFECTIVE DATE.
new text end

new text begin Sections 1 to 13 are effective for gestational carrier contracts entered into on or after
August 1, 2019.
new text end