Massachusetts

ACCEPTANCE OF CALIFORNIA PRE-BIRTH ORDER

Yes. Draft pleadings should be emailed to James.ballin@state.ma.us and Karin.barrett@state.ma.us.

For Massachusetts births in gestational carrier cases, legal precedent is guided by the Culliton decision, 435 Mass. 285 (2001), which set forth requirements for the issuance of pre-birth orders in surrogacy cases in MA.  RVRS will not oppose petitions for pre-birth orders provided that we obtain a copy of the pleadings and affidavits in advance of the birth and certain information is contained in the pleadings.  In particular, we want to make sure that the hospital is required to collect statistical information regarding the biological parents, when available, and the identity of and statistical information about the gestational carrier who delivers the child, including pregnancy related health information. RVRS encourages, but does not require, biological parents to identify their genetic relationship with the child on the parent worksheet so that children will have access to important medical and health information about their biological parents should they wish to seek such information upon reaching adulthood.

Below is sample language that can be used to customize a proposed judgment related to the birth certificate to address these issues.

Please have all pleadings and affidavits sent to Karin Barrett, Registrar, Registry of Vital Records and Statistics, sufficiently in advance of filing to allow for RVRS review.  If you don’t hear back from RVRS within two weeks of submission, you may assume the pleadings are acceptable and proceed with filing. The Registrar is copied on this email and you may send her the pleadings by email and copy me.  You should also email us a copy of final judgment when you get it.  We don’t need a paper copy as long as the hospital receives an original certified copy.

1.                   Upon birth, the Reporter or Registrar of Birth Certificates at [NAME OF HOSPITAL]in [CITY/TOWN], Massachusetts, or any other hospital where the birth may occur, shall complete a “record of birth” created pursuant to G.L. c. 46 §§ 1, 3, and 3A for the child, also known as a birth certificate, for newborn Baby A to be born to Defendant, [NAME OF SURROGATE], a(n) [married/unmarried] woman, on or about [EXPECTED DATE OF DELIVERY], which contains, in addition to all other required information, the information about the child’s parents:

a.                   [FIRST MIDDLE LAST NAME OF FATHER] (Date of Birth:  [MONTH XX, 201X]; Place of Birth:  [CITY/TOWN, STATE OR COUNTRY IF NOT US]; Social Security Number:  XXX-XX-XXXX) be named as the natural, legal and biological father/parent of newborn Baby A.  The place of residence is [FULL ADDRESS]. 

b.                   [FIRST MIDDLE LAST NAME OF SPOUSE] (Date of Birth:  [MONTH XX, 201X]; Place of Birth:  [CITY/TOWN, STATE OR COUNTRY IF NOT US]; Social Security Number:  XXX-XX-XXXX) be named as the legal mother/parent of newborn Baby A.  The place of residence is [FULL ADDRESS]. 

2.                   The Hospital shall complete and submit the electronic birth record for registration by the Clerk/Registrar for the [CITY/TOWN OF XXXX], Massachusetts or the town clerk where the birth occurs (if in a hospital outside of [CITY/TOWN], Massachusetts). 

3.                   Said Clerk/Registrar is directed to then record such return of birth. 

4.                   The Hospital shall transmit to the Department’s State Registrar of Vital Records and Statistics the authenticated copy of this Judgment and related judicial orders in a timely manner.

5.                   The Hospital shall forward to the State Registrar of Vital Records and Statistics the identity of and statistical information regarding the Defendant gestational carrier who delivers the child and such other information concerning her, including her prenatal care, labor and delivery and postpartum care and condition, and the statistical information regarding the Defendant anonymous egg donor, where possible, as is required by the Commissioner of the Massachusetts’ Department of Public Health for administrative, research and statistical purposes pursuant to G.L. c. 111 s.24B. 

Vital Records prefers the biological father be listed in the “Father/Parent 2” box. Once entered, the Order should be emailed to both individuals, as well. The certified Order should be presented to the hospital.

The child’s social security number may also be requested at the time of birth and via the hospital without the fear the child will be linked to the GC.

Birth Certificates

Timing - Varies by county, but the typical time frame is 5-10 business days.

Title - As of January 2016, same sex couples can choose to be listed as father, parent, or mother.

GC - The initial birth certificate can include the name of the GC with the name of an IP.  The birth certificate can later be revised to remove the name of the GC.

statutes / case law

Gestational Surrogacy is permitted by case law; Hodas v. Morin (2004); Culliton v. Beth Israel Deaconess Med. Ctr.(2002); R.R. v. M.H. (1998).

Is there a statute or published case law that addresses the rights of a donor over the resulting eggs, sperm, embryo or child?  Yes. Mass. G.L. c. 46, § 4B states, "Any child born to a married woman as a result of artificial insemination with the consent of her husband, shall be considered the legitimate child of the mother and such husband."

 
If the statute only refers to sperm donors, is there case law interpreting this statute to provide the same protection in the egg donor context?  No; however, Goodridge v. Dept. of Public Health holds that all statutes must be read in a gender neutral manner.

Venue

County of the child's birthplace, county of the Intended Parent's residence, or county of the GC’s residence.

Do results vary by venue?  No.

Are motions to waive venue accepted?  Possibly.

Electronic signatures / e-notarizaTIONS

Traditional signatures and traditional notarizations or electronic signatures and electronic notarizations are accepted.

Second / step parent adoptions

Can the non-biological parent in a same-sex couple obtain a second parent adoption based solely on the fact that the child was born in the state (i.e., neither of the Intended Parents lives in the state)?  Depending on the judge, yes.

Will courts igrant second parent adoptions or stepparent adoptions to heterosexual couples living in the state?  Yes.

Does the couple need to be married?  No.
 
Will courts grant second parent adoptions or stepparent adoptions to same-sex couples living in the state?  Yes.

Does the couple need to be married?  No.