SF 2627

1st Engrossment - 88th Legislature (2013 - 2014) Posted on 09/03/2014 09:14am

A bill for an act
relating to assisted reproduction; modifying certain provisions related to
determinations of paternity and maternity; amending Minnesota Statutes 2012,
sections 257.54; 257.55, subdivision 1; 257.56; proposing coding for new law in
Minnesota Statutes, chapter 257.

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

ARTICLE 1

PATERNITY

Section 1.

Minnesota Statutes 2012, section 257.54, is amended to read:

257.54 HOW PARENT AND CHILD RELATIONSHIP ESTABLISHED.

new text begin Subdivision 1. new text end

new text begin General. new text end

The parent and child relationship between a child and:

(a) the biological mother may be established by proof of her having given birth to
the child, or under sections 257.51 to 257.74 or 257.75;

(b) the biological father may be established under sections 257.51 to 257.74 or
257.75; or

(c) an adoptive parent may be established by proof of adoption.

new text begin Subd. 2. new text end

new text begin Application of paternity provisions to maternity determination.
new text end

new text begin Provisions of sections 257.51 to 257.74 or 257.75 relating to determination of paternity,
including all presumptions and procedures, apply to determinations of maternity.
new text end

Sec. 2.

Minnesota Statutes 2012, section 257.55, subdivision 1, is amended to read:

Subdivision 1.

Presumption.

A man is presumed to be the biological father of
a child if:

(a) he and the child's biological mother are or have been married to each other and
the child is born during the marriage, or within 280 days after the marriage is terminated
by death, annulment, declaration of invalidity, dissolution, or divorce, or after a decree of
legal separation is entered by a court. The presumption in this paragraph does not apply if
the man has joined in a recognition of parentage recognizing another man as the biological
father under section 257.75, subdivision 1a;

(b) before the child's birth, he and the child's biological mother have attempted to
marry each other by a marriage solemnized in apparent compliance with law, although the
attempted marriage is or could be declared void, voidable, or otherwise invalid, and:

(1) if the attempted marriage could be declared invalid only by a court, the child
is born during the attempted marriage, or within 280 days after its termination by death,
annulment, declaration of invalidity, dissolution or divorce; or

(2) if the attempted marriage is invalid without a court order, the child is born within
280 days after the termination of cohabitation;

(c) after the child's birth, he and the child's biological mother have married, or
attempted to marry, each other by a marriage solemnized in apparent compliance with
law, although the attempted marriage is or could be declared void, voidable, or otherwise
invalid, and:

(1) he has acknowledged his paternity of the child in writing filed with the state
registrar of vital statistics;

(2) with his consent, he is named as the child's father on the child's birth record; or

(3) he is obligated to support the child under a written voluntary promise or by
court order;

(d) while the child is under the age of majority, he receives the child into his home
and openly holds out the child as his biological child;

(e) he and the child's biological mother acknowledge his paternity of the child in a
writing signed by both of them under section 257.34 and filed with the state registrar of
vital statistics. If another man is presumed under this paragraph to be the child's father,
acknowledgment may be effected only with the written consent of the presumed father or
after the presumption has been rebutted;

(f) he and the child's biological mother have executed a recognition of parentage
in accordance with section 257.75 and another man is presumed to be the father under
this subdivision;

(g) he and the child's biological mother have executed a recognition of parentage in
accordance with section 257.75 and another man and the child's mother have executed a
recognition of parentage in accordance with section 257.75; deleted text begin or
deleted text end

(h) he and the child's biological mother executed a recognition of parentage in
accordance with section 257.75 when either or both of the signatories were less than
18 years of age deleted text begin . deleted text end new text begin ; or
new text end

new text begin (i) the pregnancy was initiated by means other than sexual intercourse and he was
intended at the outset of the process to be the legal parent of any resulting child pursuant
to an express written agreement among all known presumptive parents entered into prior
to the initiation of the pregnancy.
new text end

Sec. 3.

Minnesota Statutes 2012, section 257.56, is amended to read:

257.56 deleted text begin ARTIFICIAL INSEMINATION deleted text end new text begin ASSISTED REPRODUCTION new text end .

Subdivision 1.

deleted text begin Husband deleted text end new text begin Intended parents new text end treated as biological deleted text begin father deleted text end new text begin parents new text end .

new text begin (a) new text end If deleted text begin , deleted text end new text begin a woman undergoing artificial insemination new text end under the supervision of a licensed
physician and with the consent of deleted text begin her husband, a wife deleted text end new text begin the other intended parent, if any, new text end is
inseminated deleted text begin artificially with deleted text end new text begin using new text end semen deleted text begin donated by a man not her husband, the husband
deleted text end new text begin from a donor who is not an intended parent, the other intended parent, if any, new text end is treated in
law as deleted text begin if he were deleted text end the biological deleted text begin father deleted text end new text begin parent new text end of a child thereby conceived. deleted text begin The husband's
consent must be in writing and signed by him and his wife.
deleted text end

new text begin (b) The intended parents are treated in law as if they were the biological parents of
a child gestated and delivered if a woman receiving the embryo transfer is under the
supervision of a licensed physician, has the consent of the other intended parent, if any, and:
new text end

new text begin (1) the embryos are created with eggs and sperm donated by persons who are not
the intended parents; or
new text end

new text begin (2) the embryos are created with eggs donated by a woman who is not the intended
parent and the sperm of an intended parent.
new text end

new text begin (c) Intended parents must consent in a record that they intend to become the legal
parents of the resulting child. new text end The consent must be retained by the physician for at least
four years after the confirmation of a pregnancy that occurs during the process of artificial
insemination new text begin or embryo transfer new text end .

new text begin (d) new text end All papers and records pertaining to the insemination new text begin or embryo transfer new text end , whether
part of the permanent record of a court or of a file held by the supervising physician or
elsewhere, are subject to inspection only upon an order of the court for good cause shown.

new text begin (e) For purposes of this section, "intended parent" means a person, married or
unmarried, who enters into a written agreement with all known donors before the date
of the insemination or embryo transfer under which the person will be the legal parent
of the child resulting from the insemination or embryo transfer. 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 257.97, regardless of gender.
new text end

Subd. 2.

Donor not treated as biological deleted text begin father deleted text end new text begin parent new text end .

new text begin If new text end the donor of semen new text begin ,
eggs, or embryos new text end provided to a licensed physician for use in deleted text begin artificial insemination of a
married woman other than the donor's wife deleted text end new text begin assisted reproduction is not an intended parent,
the donor new text end is treated in law as if deleted text begin he deleted text end new text begin the donor new text end were not the biological deleted text begin father deleted text end new text begin parent new text end of a child
thereby conceived new text begin , gestated, and delivered new text end .

new text begin Subd. 3. new text end

new text begin Effect of noncompliance. new text end

new text begin In the event of noncompliance with any of the
requirements or terms of subdivision 1, a court of competent jurisdiction shall determine
the respective parental rights and obligations of the parties, including intended parents and
donors, based solely on evidence of the parties' original intent.
new text end

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective the day following final enactment
and applies to any donations made before, on, or after that date.
new text end

Sec. 4. new text begin EFFECTIVE DATE; APPLICATION.
new text end

new text begin Sections 1 and 2 are effective August 1, 2014, and apply to actions filed on or after
that date.
new text end

ARTICLE 2

GESTATIONAL SURROGACY

Section 1.

new text begin [257.87] 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 257.87 to
257.99.
new text end

new text begin Subd. 2. new text end

new text begin Assisted reproduction. new text end

new text begin "Assisted reproduction" means initiating a
pregnancy under the supervision of a licensed physician by any means other than through
sexual intercourse.
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 and
who contributes a gamete or gametes for the purpose of in vitro fertilization or transfer
to another.
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 Fee. new text end

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

new text begin Subd. 7. 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. 8. new text end

new text begin Gestational surrogate. new text end

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

new text begin Subd. 9. 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 attempts to carry and give birth to
a child created through assisted reproduction using the gamete or gametes procured or
provided by at least one of the intended parents.
new text end

new text begin Subd. 10. 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. 11. 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 all medical, psychological, or counseling
professionals.
new text end

new text begin Subd. 12. new text end

new text begin Intended parent. new text end

new text begin "Intended parent" means a person who enters into a
gestational surrogacy contract with a gestational surrogate 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 spouses for all purposes of sections 257.87 to 257.99,
regardless of gender. This term includes the intended mothers, intended fathers, or both.
new text end

new text begin Subd. 13. 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. 14. 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 in accordance with 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 Mental health evaluation. new text end

new text begin "Mental health evaluation" means an
evaluation by and consultation with a mental health professional conducted in accordance
with 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. 16. 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 [257.88] RIGHTS OF PARENTAGE.
new text end

new text begin (a) Except as provided in sections 257.87 to 257.99, 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 surrogacy arrangement satisfying the requirements
set forth in paragraph (d):
new text end

new text begin (1) the intended parents are the parents 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 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 surrogate nor her spouse, if any, is the parent of the child
for purposes of state law immediately upon the birth of the child.
new text end

new text begin (c) In the case of a gestational surrogacy 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 in an action
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 surrogacy arrangement assume the rights and
obligations of paragraphs (b) and (c) if:
new text end

new text begin (1) the gestational surrogate satisfies the eligibility requirements in section 257.89,
paragraph (a);
new text end

new text begin (2) the intended parent or parents satisfy the eligibility requirements in section
257.89, paragraph (b); and
new text end

new text begin (3) the gestational surrogacy arrangement occurs pursuant to a gestational surrogacy
contract meeting the requirements in section 257.90.
new text end

Sec. 3.

new text begin [257.89] ELIGIBILITY.
new text end

new text begin (a) A gestational surrogate satisfies the requirements of sections 257.87 to 257.99 if
she has met the following requirements at the time the gestational surrogacy 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 has completed a medical evaluation related to the anticipated pregnancy;
new text end

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

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

new text begin (6)(i) 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 surrogate pursuant to the
gestational surrogacy contract; or (ii) the intended parents have self-insured by means of
depositing sufficient funds to pay for all reasonably anticipated medical expenses into an
escrow account with an independent escrow agent prior to the date of the first assisted
reproduction procedure performed to initiate a pregnancy.
new text end

new text begin (b) The intended parent or parents satisfy the requirements of sections 257.87
to 257.99 if the parent or parents have met the following requirements at the time the
gestational surrogacy 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 surrogate will attempt to carry to term;
new text end

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

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

new text begin (4) the parent or parents have undergone legal consultation with separate,
independent legal counsel regarding the terms of the gestational surrogacy contract and
the potential legal consequences of the gestational surrogacy arrangement.
new text end

Sec. 4.

new text begin [257.90] REQUIREMENTS FOR A GESTATIONAL SURROGACY
CONTRACT.
new text end

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

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

new text begin (2) it contains at least the terms in paragraph (c).
new text end

new text begin (b) A gestational surrogacy contract must 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 in
furtherance of the gestational surrogacy arrangement, other than medical or mental health
evaluations necessary to determine eligibility of the parties under section 257.89:
new text end

new text begin (i) by a gestational surrogate meeting the eligibility requirements of section 257.89,
paragraph (a), and if married, the gestational surrogate's spouse; and
new text end

new text begin (ii) by the intended parent or parents meeting the eligibility requirements of section
257.89, paragraph (b). In the event an intended parent is married, both spouses must
execute the gestational surrogacy contract;
new text end

new text begin (3) the gestational surrogate and the intended parent or parents must have been
represented by separate, independent legal counsel in all matters concerning the gestational
surrogacy arrangement and the gestational surrogacy contract;
new text end

new text begin (4) the gestational surrogate and the intended parent or parents must have signed
a written acknowledgment of their receipt of information about the legal, financial, and
contractual rights, expectations, penalties, and obligations of the gestational surrogacy
agreement;
new text end

new text begin (5) if the gestational surrogacy contract provides for the payment of a fee to the
gestational surrogate, the fee must have been placed in escrow with an independent
escrow agent prior to the gestational surrogate's commencement of any medical procedure
other than medical or mental health evaluations necessary to determine the gestational
surrogate's eligibility under section 257.89, paragraph (a); and
new text end

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

new text begin (c) A gestational surrogacy contract must provide for:
new text end

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

new text begin (i) undergo a procedure for assisted reproduction 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 surrogate is married, the express agreement of the gestational
surrogate's spouse to:
new text end

new text begin (i) undertake the obligations imposed on the gestational surrogate pursuant to the
terms of the gestational surrogacy 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 surrogate to use the services of a physician of her
choosing, after consultation with the intended parents, to provide her care during the
pregnancy, subject only to any reasonably negotiated removal or replacement procedures
that the parties included in the terms of the gestational surrogacy 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 (d) A gestational surrogacy 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 surrogate'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 surrogate's agreement to abstain from any activities that the
intended parent or parents or the physician reasonably believes to be harmful to the
pregnancy and future health of the child, including, without limitation, smoking, drinking
alcohol, using nonprescribed drugs, using prescription drugs not authorized by a physician
aware of the gestational surrogate's pregnancy, exposure to radiation, or any other activities
proscribed by a health care provider, provided that the requirements under this clause must
not actually and unreasonably jeopardize the gestational surrogate's own health;
new text end

new text begin (3) the agreement of the intended parent or parents to pay for or reimburse the
gestational surrogate for reasonable expenses including, without limitation, medical, legal,
or other professional expenses related to the gestational surrogacy arrangement and the
gestational surrogacy contract; and
new text end

new text begin (4) the agreement of the intended parent or parents to pay the gestational surrogate a
fee for her services in gestating the intended parents' child.
new text end

Sec. 5.

new text begin [257.91] DUTY TO SUPPORT.
new text end

new text begin (a) A person considered to be the parent of the child under section 257.88 is
obligated to support the child.
new text end

new text begin (b) A breach of the gestational surrogacy contract by the intended parent or parents
does not relieve the intended parent or parents of the support obligations imposed by
sections 257.87 to 257.99.
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 [257.92] ESTABLISHMENT OF THE PARENT-CHILD RELATIONSHIP.
new text end

new text begin (a) For purposes of the Parentage Act, sections 257.51 to 257.74, the parent-child
relationship that arises immediately upon the birth of the child pursuant to section
257.89 is established if, prior to or within three business days after the birth of a child
born through a gestational surrogacy arrangement, the attorneys representing both the
gestational surrogate and the intended parent or parents certify that the parties entered into
the gestational surrogacy contract intended to satisfy the requirements of section 257.90
with respect to the child and deliver those certifications to the delivering hospital and the
Minnesota Department of Health, Office of Vital Records.
new text end

new text begin (b) The attorneys' 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 (c) The attorney certifications required by paragraph (a) 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 (d) Upon compliance with the certification provision 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 [257.93] ENTRY OF JUDGMENT OF PARENTAGE.
new text end

new text begin (a) A judgment establishing the intended parent's exclusive legal parentage for all
purposes, including, but not limited to, interstate recognition and enforcement of the
intended parent's legal parentage, must 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 all of the certification
requirements set forth in section 257.92;
new text end

new text begin (2) one of the parties has filed with the court a petition to establish parentage under
the Parentage Act; 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 both parties file with the court administrator copies of their
certifications of compliance as required by section 257.92.
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 [257.94] EFFECT OF GESTATIONAL SURROGATE'S SUBSEQUENT
MARRIAGE.
new text end

new text begin Subsequent marriage of the gestational surrogate does not affect the validity of a
gestational surrogacy 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 [257.95] IMMUNITIES.
new text end

new text begin Except as provided in sections 257.87 to 257.99, no person is civilly or criminally
liable for nonnegligent actions taken pursuant to the requirements of sections 257.87 to
257.99. 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 [257.96] NONCOMPLIANCE.
new text end

new text begin Noncompliance by the gestational surrogate or the intended parent or parents occurs
if that party breaches a provision of the gestational surrogacy contract or fails to comply
with any requirement in sections 257.87 to 257.99.
new text end

Sec. 11.

new text begin [257.97] EFFECT OF NONCOMPLIANCE.
new text end

new text begin (a) In the event of noncompliance, as defined in section 257.96, the woman who gives
birth to the child is presumed to be the mother of that child for state law, and a court of
competent jurisdiction shall determine the respective rights and obligations of the parties to
any surrogacy agreement based solely on the other provisions of the Parentage Act, sections
257.51 to 257.74, specifically including, but not limited to, the best interests of the child.
new text end

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

Sec. 12.

new text begin [257.98] DAMAGES.
new text end

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

Sec. 13.

new text begin [257.99] IRREVOCABILITY.
new text end

new text begin No action to invalidate a gestational surrogacy arrangement meeting the
requirements of section 257.88, paragraph (d), or to challenge the rights of parentage
established under section 257.88 and the Parentage Act, sections 257.51 to 257.74, may be
commenced after 12 months from the date of birth of a 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 surrogacy contracts entered into on
or after August 1, 2014.
new text end