HF 2025

as introduced - 89th Legislature (2015 - 2016) Posted on 03/19/2015 01:42pm

A bill for an act
relating to health; regulating the practice of gestational carrying; creating rights
and duties; providing for damages; 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
257.98.
new text end

new text begin Subd. 2. new text end

new text begin Compensation. new text end

new text begin "Compensation" means payment of any valuable
consideration for time, effort, pain, or risk to health in excess of reasonable medical
and ancillary costs.
new text end

new text begin Subd. 3. 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 person.
new text end

new text begin Subd. 4. 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. 5. 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. 6. new text end

new text begin Gamete. new text end

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

new text begin Subd. 7. new text end

new text begin Gestational carrier. new text end

new text begin "Gestational carrier" means a woman who enters into
a gestational carrier arrangement.
new text end

new text begin Subd. 8. 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 the gamete or gametes procured or provided by the
intended parents and to which the gestational carrier has made no genetic contribution.
new text end

new text begin Subd. 9. 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. 10. new text end

new text begin Health care provider. new text end

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

new text begin Subd. 11. 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 sections 257.86 to 257.98 regardless of gender. This
term includes intended mothers, intended fathers, or both.
new text end

new text begin Subd. 12. new text end

new text begin In vitro fertilization. new text end

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

new text begin Subd. 13. new text end

new text begin Medical evaluation. new text end

new text begin "Medical evaluation" means an evaluation and
consultation of 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. 14. 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. 15. 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 257.98, the 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 in
paragraph (d):
new text end

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

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

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

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

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

new text begin (c) For a gestational carrier arrangement complying with paragraph (d), in the event
of a laboratory error in which the resulting child is not genetically related to either of the
intended parents, the intended parents are the parents of the child for purposes of state
law unless otherwise determined by a court of competent jurisdiction. An action under
this paragraph may only be brought by one or more of the genetic parents within 60
days 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,
subdivision 1;
new text end

new text begin (2) the intended parent or parents satisfy the eligibility requirements in section
257.88, subdivision 2; 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 Subdivision 1. new text end

new text begin Eligibility of gestational carrier. new text end

new text begin A gestational carrier satisfies the
requirements of sections 257.86 to 257.98 if the carrier has met the following requirements
at the time the gestational carrier contract is executed:
new text end

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

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

new text begin (3) she is not genetically related to the child she will carry;
new text end

new text begin (4) she has completed a medical evaluation relating to the anticipated pregnancy and
provides a written statement from the examining physician stating that it is reasonably
likely that she can successfully carry a pregnancy to full term without any complications
that would threaten her health or the health of the resulting child;
new text end

new text begin (5) she has completed a mental health evaluation relating to the anticipated
gestational carrier arrangement;
new text end

new text begin (6) she has consulted with 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 (7) she has obtained, or obtains prior to the embryo transfer, a health insurance
policy that covers major medical treatments and hospitalization, and the health insurance
policy has a term that extends throughout the duration of the expected pregnancy and for
eight weeks after the birth of the child; provided, however, that the policy may be procured
by the intended parents on behalf of the gestational carrier pursuant to the gestational
carrier contract, or the intended parents may self-insure by depositing sufficient funds to
pay for all reasonably expected medical expenses into escrow prior to the date of the
first embryo transfer.
new text end

new text begin Subd. 2. new text end

new text begin Eligibility of intended parent or parents. new text end

new text begin The intended parent or parents
satisfy the requirements of sections 257.86 to 257.98 if the parent or parents have met the
following requirements at the time the gestational carrier contract is executed:
new text end

new text begin (1) the parent or parents procure or provide the gametes that will ultimately result in
an embryo that the gestational carrier will attempt to carry to term;
new text end

new text begin (2) the parent or parents require the services of the gestational carrier in order to
have a child for medical or social reasons as evidenced by a qualified physician's affidavit
attached to the gestational carrier contract;
new text end

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

new text begin (4) the parent or parents have consulted with 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 Subdivision 1. new text end

new text begin Enforceability. new text end

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

new text begin (1) it meets the contractual requirements in subdivision 2; and
new text end

new text begin (2) it contains at a minimum each of the terms in subdivision 3.
new text end

new text begin Subd. 2. new text end

new text begin Contractual requirements. new text end

new text begin A gestational carrier contract shall meet the
following requirements:
new text end

new text begin (1) it must be in writing;
new text end

new text begin (2) it must be 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:
new text end

new text begin (i) by a gestational carrier meeting the eligibility requirements of section 257.88,
subdivision 1, and, if married, the gestational carrier's spouse; and
new text end

new text begin (ii) by the intended parent or parents meeting the eligibility requirements of section
257.88, subdivision 2. In the event an intended parent is married, both married intended
parents must execute the gestational carrier contract;
new text end

new text begin (3) both the gestational carrier and the intended parent or parents must be
represented by separate, independent counsel in all matters concerning the gestational
carrier arrangement and the gestational carrier contract;
new text end

new text begin (4) both the gestational carrier and the intended parent or parents must sign 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 (5) if the gestational carrier contract provides for the payment of compensation to
the gestational carrier, the compensation must be placed in escrow with an independent
escrow agent prior to the gestational carrier's commencement of any medical procedure
intended to initiate a pregnancy other than medical or mental health evaluations necessary
to determine the gestational carrier's eligibility under section 257.88, subdivision 1; and
new text end

new text begin (6) it must be notarized or witnessed by two disinterested, competent adults.
new text end

new text begin Subd. 3. new text end

new text begin Required terms. new text end

new text begin A gestational carrier contract shall include the following
terms:
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 or parents
immediately upon the birth of the 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) undertake 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 or parents
immediately upon the birth of the resulting 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 or parents, to provide her care during
the pregnancy subject only to any removal or replacement procedures that the parties
include in the terms of the gestational carrier contract; and
new text end

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

new text begin (i) accept custody of all resulting children immediately upon the 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 immediately upon the
child's birth.
new text end

new text begin Subd. 4. new text end

new text begin Enforceability of certain terms. new text end

new text begin 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 parents or the physician providing prenatal care 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;
new text end

new text begin (3) the agreement of the intended parent or parents to pay the gestational carrier
reasonable compensation; and
new text end

new text begin (4) the agreement of the intended parent or parents 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 a 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 or parents
does not relieve the intended parent or parents of the support obligations imposed by
sections 257.86 to 257.98.
new text end

new text begin (c) A gamete donor may be liable for child support only if the donor fails to enter
into a legal agreement in which the donor relinquishes rights to any gametes, resulting
embryos, or children, and the intended parent or parents fail to enter into an agreement
in which the intended parent or parents agree to assume all rights and responsibilities
for any resulting children.
new text end

Sec. 6.

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

new text begin Subdivision 1. new text end

new text begin Establishment of parent-child relationship. new text end

new text begin For purposes of the
Parentage Act in sections 257.51 to 257.75, the parent-child relationship that arises
immediately upon the birth of the child pursuant to section 257.87 is established if, prior
to or within three business days of the birth of a child born through a gestational carrier
arrangement, the attorneys representing both the gestational carrier and the intended
parent or parents provide their 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 Subd. 2. new text end

new text begin Attorney certification. new text end

new text begin (a) The attorney certifications required by
subdivision 1 shall be filed as required and on forms prescribed by the Department
of Health.
new text end

new text begin (b) The attorney certifications required by subdivision 1 must establish the parties'
compliance with 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 (c) The attorney certifications required by subdivision 1 are effective for all purposes
if completed prior to or within three business days after the child's birth.
new text end

new text begin Subd. 3. new text end

new text begin Birth records. new text end

new text begin Upon compliance with the certification provisions of
this section, 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 or
parents, and only the intended parent or parents, as the child's parent or parents 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 or parents' exclusive legal
parentage for all purposes shall be entered by the court administrator 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 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) the attorneys for the parties have filed with the court administrator a joint
affidavit of compliance with the certification requirements 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 a
gestational carrier contract. The gestational carrier's 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 257.98, no person is civilly or criminally
liable for non-negligent actions taken pursuant to sections 257.86 to 257.98. 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 257.98, including but not limited to a
gestational carrier who is genetically related to the child.
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 surrogacy
agreement based solely on the other provisions of the Parentage Act in sections 257.51 to
257.75, 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 Except as expressly provided in the gestational carrier contract, the gestational carrier
and the intended parent or parents are 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 in sections 257.51 to 257.75, may be commenced
after 12 months from the date of the 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, 2015.
new text end