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Minnesota Legislature

Office of the Revisor of Statutes

SF 1152

as introduced - 91st Legislature (2019 - 2020) Posted on 04/04/2019 03:43pm

KEY: stricken = removed, old language.
underscored = added, new language.
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A bill for an act
relating to children; regulating traditional and gestational surrogacy arrangements;
creating a crime to operate a for-profit surrogacy agency; 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 [257.90] 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 257.90 to 257.98.
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 either a sperm or an egg.
new text end

new text begin Subd. 6. new text end

new text begin Gestational surrogacy arrangement. new text end

new text begin "Gestational surrogacy arrangement"
means the process by which a woman who is not the intended parent attempts to carry and
give birth to a child created through in vitro fertilization using one or more gametes provided
by the intended parents.
new text end

new text begin Subd. 7. new text end

new text begin Gestational surrogacy contract. new text end

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

new text begin Subd. 8. new text end

new text begin Gestational surrogate. new text end

new text begin "Gestational surrogate" means a woman who
participates in a gestational surrogacy arrangement as the woman who carries the child to
term and gives birth to the child that is the subject of the surrogacy arrangement.
new text end

new text begin Subd. 9. new text end

new text begin Intended parents. new text end

new text begin "Intended parents" means a married couple, at least one of
whom contributes his or her own gamete to create the embryo implanted in the gestational
surrogate, who enters into an enforceable gestational surrogacy contract as defined in
subdivision 7, under which the married couple consents to be the legal parents of the child
or children resulting from in vitro fertilization.
new text end

new text begin Subd. 10. 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. 11. new text end

new text begin Medical evaluation. new text end

new text begin "Medical evaluation" means an evaluation by and in
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. 12. 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, as defined in section 245.462,
subdivision 18, 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 Physician. new text end

new text begin "Physician" means a person currently licensed in good standing
as a physician under chapter 147.
new text end

new text begin Subd. 14. new text end

new text begin Surrogacy agent. new text end

new text begin "Surrogacy agent" means any person or entity who provides
the service of bringing together intended parents and potential gestational surrogates to
create gestational surrogacy arrangements. The term "surrogacy agent" does not include
licensed attorneys whose services are limited to the representation of the parties during the
creation and performance of the gestational surrogacy contract.
new text end

new text begin Subd. 15. new text end

new text begin Traditional surrogacy arrangement. new text end

new text begin "Traditional surrogacy arrangement"
means the process by which a woman attempts to carry and give birth to a child using her
own gametes and either the gametes of a person who intends to parent the child, or donor
gametes, when there is an agreement to relinquish the custody of and all rights and obligations
to the child upon the child's birth.
new text end

Sec. 2.

new text begin [257.91] TRADITIONAL SURROGACY.
new text end

new text begin Traditional surrogacy arrangements and contracts related to traditional surrogacy
arrangements are invalid and parentage and custody shall remain with the woman who gave
birth to the child or children, regardless of any surrogacy arrangement, until she chooses to
terminate her parental rights.
new text end

Sec. 3.

new text begin [257.92] GESTATIONAL SURROGACY.
new text end

new text begin (a) A gestational surrogacy contract consistent with the requirements of this section shall
be enforceable.
new text end

new text begin (b) A gestational surrogacy contract is not valid unless:
new text end

new text begin (1) the gestational surrogate and the intended parents are represented by separate legal
counsel in all matters concerning the gestational surrogacy arrangement and the gestational
surrogacy contract; and
new text end

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

new text begin (c) A gestational surrogacy 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 surrogacy arrangement, other than medical or
mental health evaluations necessary to determine eligibility of the parties under section
257.94;
new text end

new text begin (3) signed by both intended parents, the gestational surrogate, and the gestational
surrogate's spouse, if any; and
new text end

new text begin (4) notarized or witnessed by two disinterested competent adults.
new text end

new text begin (d) A gestational surrogacy contract must include:
new text end

new text begin (1) the express written agreement of the intended parents to accept custody of the resulting
child or children upon the child's or children's birth regardless of number, sex, or mental or
physical condition, and to assume sole responsibility for the support of the child or children
upon the birth of the child or children;
new text end

new text begin (2) estate planning documents executed by the intended parents providing for care and
custody of the child or children in the event the intended parents predecease the child or
children;
new text end

new text begin (3) information disclosing how each intended parent will cover the expenses of the
surrogate and the medical expenses of the child, and if health care coverage is used to cover
the medical expenses, the disclosure must include a summary of the health care policy
provisions related to coverage for surrogate pregnancy, including any possible liability of
the surrogate, third-party liability liens, other insurance coverage, and any notice requirement
that could affect coverage or liability of the surrogate;
new text end

new text begin (4) a requirement that the embryo transfer be a single-embryo transfer;
new text end

new text begin (5) the express written agreement of the gestational surrogate to undergo embryo transfer,
attempt to carry and give birth to the child, and surrender custody of all resulting children
to the intended parents upon the birth of the child or children;
new text end

new text begin (6) if the gestational surrogate is married, the express agreement of the gestational
surrogate's spouse to support, facilitate, and be jointly bound by the obligations imposed
on the gestational surrogate pursuant to the terms of the gestational surrogacy contract and
to surrender custody of all resulting children to the intended parents upon the birth of the
resulting child or children, except as provided in paragraph (g);
new text end

new text begin (7) the right of the gestational surrogate to choose her own physician;
new text end

new text begin (8) a requirement that the gestational surrogate be provided a list of potential risks and
side effects for hormone treatment and pregnancy with a nongenetically related child; and
new text end

new text begin (9) that a right created under a surrogacy agreement is not assignable and there is no
third-party beneficiary of the agreement other than the child.
new text end

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

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

new text begin (2) the gestational surrogate's agreement to abstain from any activities that her physician
reasonably believes to be harmful to the pregnancy and future health of the child, including
but not limited to smoking, drinking alcohol, using drugs not prescribed or illegal drugs,
using prescription drugs not authorized by a physician aware of the gestational surrogate's
pregnancy, exposure to radiation, or any other activities prescribed by a licensed physician,
mental health professional, physician assistant, or midwife; and
new text end

new text begin (3) the agreement of the intended parents to pay for or reimburse the gestational surrogate
for reasonable expenses incurred related to the gestational surrogacy arrangement and the
gestational surrogacy contract.
new text end

new text begin (f) Gestational surrogacy contracts that include the following terms are invalid and
unenforceable, and the gestational surrogate is not liable for damage:
new text end

new text begin (1) limits on the gestational surrogate's ability to make medical decisions during the
pregnancy;
new text end

new text begin (2) a requirement that the gestational surrogate consent to the termination of a pregnancy
or selective reduction of a fetus or fetuses during pregnancy;
new text end

new text begin (3) a limit on the recovery of expenses for the gestational surrogate based on the live
birth, or terms that prevent a gestational surrogate from recovering costs when a pregnancy
is not successful; or
new text end

new text begin (4) terms that provide for compensation of the gestational surrogate beyond actual
expenses.
new text end

new text begin (g) For the purposes of this section, "compensation" means payment of money, objects,
services, or anything else with monetary value in exchange for participating in the gestational
surrogacy arrangement. Compensation shall not include reimbursement of actual expenses
incurred by the gestational surrogate related to the gestational surrogacy arrangement,
including medical insurance, life insurance, cost of medical care, legal expenses, travel
expenses, cost of clothing, and payment provided to the gestational surrogate or her family
in the event of the gestational surrogate's death or permanent disability.
new text end

new text begin (h) If the gestational surrogate marries after the gestational surrogacy contract has been
signed, there is no effect on an existing gestational surrogate contract, the gestational
surrogate's spouse's consent to the contract is not required, and the gestational surrogate's
spouse is not a presumed parent of the resulting child.
new text end

new text begin (i) Any party to the gestational surrogacy contract may invalidate the contract at any
time prior to implantation of the embryo for any reason or no reason and is not liable for
damages. Except in cases involving fraud, neither a gestational surrogate nor the surrogate's
spouse or former spouse, if any, is liable to the intended parent or parents for a penalty or
liquidated damages, for terminating a gestational surrogacy agreement under this section.
new text end

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective August 1, 2019, and applies to all
gestational surrogacy contracts entered into on or after that date.
new text end

Sec. 4.

new text begin [257.93] ELIGIBILITY.
new text end

new text begin Subdivision 1. new text end

new text begin Surrogate. new text end

new text begin A woman is eligible to serve as a gestational surrogate if, at
the time the gestational surrogacy contract is executed, the woman:
new text end

new text begin (1) is a United States citizen or legal resident;
new text end

new text begin (2) is at least 21 years of age;
new text end

new text begin (3) has given birth to a live child prior to the surrogacy arrangement;
new text end

new text begin (4) 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 surrogate or resulting child;
new text end

new text begin (5) is represented by independent legal counsel regarding the terms of the gestational
surrogacy contract and the potential legal consequences of the gestational surrogacy contract;
new text end

new text begin (6) has completed a mental health evaluation relating to the anticipated gestational
surrogacy arrangement and provided a written summary by the examining psychological
professional to the intended parents;
new text end

new text begin (7) has completed a criminal background check and provided the results to the intended
parents;
new text end

new text begin (8) is financially secure, meaning the gestational surrogate's household, excluding a
homestead mortgage and automobile loan payments, has less than $10,000 of debt at the
time of the creation of the gestational surrogacy contract;
new text end

new text begin (9) is not on any form of public assistance; and
new text end

new text begin (10) 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 parents on behalf of the gestational surrogate pursuant to the
gestational surrogate contract or the intended parents 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 Subd. 2. new text end

new text begin Intended parent. new text end

new text begin To be eligible to participate in a gestational surrogacy
arrangement and execute a gestational surrogacy contract, the intended parents must:
new text end

new text begin (1) be United States citizens or legal residents;
new text end

new text begin (2) be at least 21 years of age;
new text end

new text begin (3) have been married at least two years prior to the execution of the gestational surrogacy
contract;
new text end

new text begin (4) require the services of the gestational surrogate to have a child as evidenced by a
qualified physician's affidavit attached to the gestational surrogacy contract that the intended
parents are unable to conceive or carry a child to term;
new text end

new text begin (5) have provided a gamete for the child from at least one of the intended parents;
new text end

new text begin (6) have completed a mental health evaluation relating to the anticipated gestational
surrogacy arrangement and provided a written summary by the examining psychological
professional to the gestational surrogate;
new text end

new text begin (7) be represented by independent legal counsel regarding the terms of the gestational
surrogacy contract and the potential legal consequences of the gestational surrogacy contract;
new text end

new text begin (8) have completed a criminal background check and provided the results to the
gestational surrogate; and
new text end

new text begin (9) have an estate planning document prior to the embryo transfer providing for custody
and care of the child in the event the intended parents predecease the child.
new text end

Sec. 5.

new text begin [257.94] RIGHTS OF PARENTAGE.
new text end

new text begin (a) When a gestational surrogacy arrangement satisfies the requirements of sections
257.92 and 257.93, then:
new text end

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

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

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

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

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

new text begin (b) In gestational surrogacy arrangements in which the gestational surrogacy contract
is invalid and unenforceable, parentage and custody shall remain with the woman who gave
birth to the child or children until she chooses to terminate her parental rights.
new text end

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective August 1, 2019, and applies to all
gestational surrogacy contracts entered into on or after that date.
new text end

Sec. 6.

new text begin [257.95] PARENTAGE; DUTY TO SUPPORT.
new text end

new text begin Subdivision 1. new text end

new text begin Parentage. 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 upon the birth of the child under section
257.94 is established if, no later than five business days after the birth of a child born through
a gestational surrogacy arrangement, the attorneys representing both the gestational surrogate
and the intended parents provide joint written certification that:
new text end

new text begin (1) the parties entered into a valid gestational surrogacy contract under this chapter; and
new text end

new text begin (2) the provisions of the gestational surrogacy contract have been satisfactorily performed
by the parties.
new text end

new text begin (b) The attorney certifications required by paragraph (a) shall be filed on a form prescribed
by the Department of Health, which shall include the names of the parties to the surrogacy
arrangement, including the child, as well as demographic data regarding the intended parents
and the gestational surrogate so that (1) the department may conduct studies of gestational
surrogacy arrangements, and (2) the department may release to children born of surrogacy
the identity of the gestational surrogate when the child reaches the age of maturity. The
personal data of the parties is considered private for the purposes of public records requests.
The attorney certifications required by paragraph (a) must establish the parties' compliance
with all of the requirements of sections 257.51 to 257.75 in a manner consistent with the
requirements of sections 257.51 to 257.75, if any.
new text end

new text begin (c) The attorney certifications required by paragraph (a) must be completed no later than
five business days after the child's or children's birth. When the attorney certifications
required by paragraph (a) are completed, all hospital and state representatives or employees
shall complete the original birth certificate of the child or children to reflect the intended
parents, and only the intended parents, as the child's or children's parents. Health and birth
records related to the surrogacy arrangement, other than the birth certificate, shall contain
the identity of the gestational surrogate.
new text end

new text begin Subd. 2. new text end

new text begin Duty to support. new text end

new text begin (a) A person who is considered to be the parent of the child
under this section is obligated to support the child. A breach of the gestational surrogacy
contract by the intended parents does not relieve the intended parents of the support obligation
imposed by section 257.94.
new text end

new text begin (b) 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, in a record between the donor and:
new text end

new text begin (1) a medical or other storage facility; or
new text end

new text begin (2) the intended parents, whether the donor is anonymous or is known to the intended
parents.
new text end

new text begin (c) If the requirements of this section are met, a donor is not obligated to pay child
support for a child born from the donor's gamete donation.
new text end

new text begin Subd. 3. new text end

new text begin Entry of judgment of parentage. new text end

new text begin (a) A judgment establishing the intended
parents' exclusive legal parentage 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 subdivision 1;
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 surrogacy
arrangement, the attorneys for the parties file with the court administrator a joint affidavit
of compliance with the certification requirements set forth in subdivision 1.
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

new text begin Subd. 4. new text end

new text begin Parentage of deceased intended parent. new text end

new text begin This section applies to an intended
parent even if the intended parent died during the period between the transfer of a gamete
or embryo and the birth of the child. An intended parent is not a parent of a child conceived
by assisted reproduction under a gestational surrogacy agreement if the intended parent dies
before the transfer of a gamete or embryo.
new text end

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective August 1, 2019, and applies to all
gestational surrogacy contracts entered into on or after that date.
new text end

Sec. 7.

new text begin [257.96] BREACH; DAMAGES.
new text end

new text begin Subdivision 1. new text end

new text begin Breach of surrogacy contract. new text end

new text begin A breach of the surrogacy contract occurs
if the gestational surrogate or the intended parent or parents fails to comply with a provision
of the surrogacy contract or the requirements in sections 257.92 to 257.95.
new text end

new text begin Subd. 2. new text end

new text begin Specific performance prohibited. new text end

new text begin If the surrogacy contract is breached, a
court of competent jurisdiction shall determine the rights and obligations of the parties to
any gestational surrogacy contract 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. The remedy of specific performance is not available for a breach of a gestational
surrogacy contract by the gestational surrogate.
new text end

new text begin Subd. 3. new text end

new text begin Damages. new text end

new text begin Except as expressly provided in the gestational surrogacy contract
or sections 257.92 to 257.95, the intended parents and the gestational surrogate are entitled
to all remedies available at law or equity. Any action arising from a surrogacy contract must
be brought within two years from the date of the birth of the child that was the result of the
surrogacy arrangement.
new text end

new text begin Subd. 4. new text end

new text begin Immunity; negligence. new text end

new text begin Except as provided in sections 257.90 to 257.98, no
person is civilly or criminally liable for nonnegligent actions taken pursuant to the
requirements of sections 257.90 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

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective August 1, 2019, and applies to all
gestational surrogacy contracts entered into on or after that date.
new text end

Sec. 8.

new text begin [257.97] FOR-PROFIT SURROGACY AGENTS PROHIBITED.
new text end

new text begin (a) It shall be unlawful for any individual or unincorporated association to accept
compensation for recruiting or procuring surrogates, or to accept compensation for otherwise
arranging or inducing intended parents and surrogates to enter into surrogacy contracts in
this state. All surrogacy agents operating in Minnesota and formed as corporations must be
formed as nonprofit corporations under chapter 317A. Surrogacy agencies formed as
nonprofit corporations shall be licensed by the Department of Human Services. Surrogacy
agents formed as corporations under chapter 317A may receive compensation for facilitating
a gestational surrogacy arrangement.
new text end

new text begin (b) A violation of this section shall be punishable as a felony with a prison sentence of
up to two years and a fine of $25,000.
new text end

new text begin (c) Any person who acts as a surrogacy agent in violation of this section shall also be
liable to all the parties to the gestational surrogacy contract in an amount equal to three
times the amount of compensation to have been paid to the agent pursuant to the contract.
One-half of the damages under this paragraph shall be due to (1) the gestational surrogate
and (2) the gestational surrogate's spouse, if any, if the spouse is a party to the contract.
One-half of the damages under this paragraph shall be due to the intended parents. An action
under this section must be brought within five years of the date of the contract.
new text end

new text begin (d) This section does not apply to the services of an attorney who gives legal advice
relating to a surrogacy contract or prepares a surrogacy contract, provided that the attorney
does not also serve as a surrogacy agent.
new text end

Sec. 9.

new text begin [257.98] GESTATIONAL SURROGACY DATA COLLECTION.
new text end

new text begin The Department of Health shall collect aggregate data related to surrogacy, as described
in section 257.95. Health care professionals who perform in vitro fertilization and embryo
transfer procedures for gestational surrogacy arrangements shall report to the Department
of Health data on the use of gestational surrogacy, including the number of in vitro
procedures, embryo transfers, and live births connected to surrogacy arrangements, as well
as the health of children born via surrogacy arrangements.
new text end

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective August 1, 2019, and applies to all
gestational surrogacy contracts entered into on or after that date.
new text end