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Minnesota Legislature

Office of the Revisor of Statutes

SF 2965

3rd Engrossment - 85th Legislature (2007 - 2008) Posted on 12/15/2009 12:00am

KEY: stricken = removed, old language.
underscored = added, new language.

Current Version - 3rd Engrossment

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A bill for an act
relating to children; regulating gestational carrier arrangements; establishing
intended parents rights under assisted reproduction; amending Minnesota
Statutes 2006, section 257.56; proposing coding for new law in Minnesota
Statutes, chapter 257.

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

Section 1.

Minnesota Statutes 2006, section 257.56, is amended to read:


257.56 deleted text beginARTIFICIAL INSEMINATIONdeleted text endnew text begin ASSISTED REPRODUCTIONnew text end.

Subdivision 1.

deleted text beginHusbanddeleted text end new text beginIntended parents new text endtreated as biological deleted text beginfatherdeleted text endnew text begin parentsnew text end.

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

deleted text begin Thedeleted 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. A
new text endconsent must be retained by the physician for at
least four years after the confirmation of a pregnancy that occurs during the process of
artificial inseminationnew text begin or embryo transfernew text end.

new text begin (d) new text endAll papers and records pertaining to the inseminationnew text begin or embryo transfernew 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.

Subd. 2.

Donor not treated as biological deleted text beginfatherdeleted text endnew text begin parentnew text end.

new text beginIf new text endthe donor of semennew text begin,
eggs, or embryos
new text end provided to a licensed physician for use in deleted text beginartificial insemination of a
married woman other than the donor's wife
deleted text end new text beginassisted reproduction is not an intended parent,
the donor
new text endis treated in law as deleted text beginif he weredeleted text end not the biological deleted text beginfatherdeleted text end new text beginparent new text endof a child thereby
conceivednew text begin, gestated, and deliverednew 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 the 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 donations made before, on, or after the effective date.
new text end

Sec. 2.

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
257.98.
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 health risks 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
and who contributes a gamete or gametes for the purpose of in vitro fertilization or
implantation in 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 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 agrees to
engage in 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 of at least one of 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
duly 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 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 husband and wife for all purposes of sections 257.87 to
257.98. This term includes the intended mother, intended father, 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 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. 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 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 Physician. new text end

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

Sec. 3.

new text begin [257.88] RIGHTS OF PARENTAGE.
new text end

new text begin (a) Except as provided in sections 257.87 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
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 carrier nor her husband, 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 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 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 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 257.89,
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 carrier arrangement occurs pursuant to a gestational carrier
contract meeting the requirements in section 257.90.
new text end

Sec. 4.

new text begin [257.89] ELIGIBILITY.
new text end

new text begin (a) A gestational carrier satisfies the requirements of sections 257.87 to 257.98 if she
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 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 carrier arrangement;
new text end

new text begin (5) she 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, including that receipt of compensation must be
reported and may disqualify her from all or part of medical benefits under Minnesota
health care programs established under chapter 256B, 256D, or 256L, and from all or part
of benefits under other income-based governmental assistance programs; and
new text end

new text begin (6) 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.
new text end

new text begin (b) The intended parent or parents satisfy the requirements of sections 257.87
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 contribute at least one of 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 have a medical need for the gestational carrier arrangement
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 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. 5.

new text begin [257.90] REQUIREMENTS FOR A 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 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 carrier 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 carrier 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 carrier meeting the eligibility requirements of section 257.89,
paragraph (a), and if married, the gestational carrier's husband; 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 husband and wife
must execute the gestational carrier contract;
new text end

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

new text begin (4) each of the gestational carrier 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 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 have been placed in escrow with an
independent escrow agent prior to the gestational carrier's commencement of any medical
procedure other than medical or mental health evaluations necessary to determine the
gestational carrier's eligibility under section 257.89, paragraph (a);
new text end

new text begin (6) it must require direct reimbursement to the Department of Human Services
for any medical expenses paid by Minnesota health care programs established under
chapter 256B, 256D, or 256L and related to prenatal care and delivery expenses under the
gestational carrier contract. A person considered to be the parent of the child under section
257.88, paragraph (b), is a liable third party and obligated to reimburse the department for
any medical expenses related to the birth of the child or medical complication caused by
the birth; and
new text end

new text begin (7) it must be witnessed by two disinterested competent adults.
new text end

new text begin (c) A gestational carrier 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 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 husband 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 parents, to provide her care during the
pregnancy; 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 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 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 carrier'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 carrier's own health; and
new text end

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

Sec. 6.

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 carrier 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 257.98.
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. 7.

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 24 hours of the birth of a child born through
gestational carrier arrangement, the attorneys representing both the gestational carrier and
the intended parent or parents certify that the parties entered into the gestational carrier
contract intended to satisfy the requirements of section 257.90 with respect to the child.
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 24 hours 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. 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, 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 257.87 to 257.98, no person is civilly or criminally
liable for nonnegligent actions taken pursuant to the requirements of sections 257.87 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 requirement in sections 257.87 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 respective rights and obligations of the parties to any
surrogacy agreement based solely on evidence of the parties' original intent.
new text end

new text begin (b) There is 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 257.88, 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 beginEFFECTIVE DATE.
new text end

new text begin Sections 2 to 13 are effective for gestational carrier contracts entered into on or
after August 1, 2008.
new text end