An introduction to the laws of Assisted Reproductive Technology (ART) in the State of Massachusetts
Whether you are considering becoming a donor or surrogate or you are a prospective intended parent, knowledge is power. To help in your family journey, experienced ART attorneys licensed in Massachusetts and fellows of The Academy of Adoption and Assisted Reproduction Attorneys (AAAA) share expertise and provide an introduction to the laws of Assisted Reproduction Technology in MA.
Key Questions on ART Laws in Massachusetts
Generally, is Massachusetts friendly to ART? Yes
Is Massachusetts friendly to non-married couples? Yes
Is Massachusetts friendly to LGBT families? Yes
Is Massachusetts friendly to a single intended parent? Yes
Are there statutes in Massachusetts for surrogacy? No, but there is legislation pending. Surrogacy permitted through case law.
Does Massachusetts have an embryo donation statute? No, but there is legislation pending. Donation permitted through applying case law and MA constitution to sperm donor statute.
Does Massachusetts have an egg donation statute? No, but there is legislation pending. Donation permitted through applying case law and MA constitution to sperm donor statute.
Is gestational surrogacy (third party gamete use) permitted in Massachusetts? Yes
Is traditional surrogacy (use of the surrogate’s genetic material) permitted in Massachusetts? Technically yes, but can only secure parentage through a post-birth adoption.
Is commercial (paid) surrogacy allowed by statute? In practice? Yes, in practice in Massachusetts
Is altruistic (expense reimbursement only) surrogacy allowed by statute? In practice? Yes, in practice in Massachusetts
Does Massachusetts only permit a Carrier to be reimbursed for expenses (altruistic)? No.
Are surrogacy agreements enforceable, void or prohibited? Massachusetts case law doesn't specifically say they are enforceable but allows for parentage to be established pre-birth in gestational surrogacy arrangements. So, by implication they are enforceable.
Do both Intended Parents both have to be genetically related to the child? No
Does Massachusetts require at least one Intended Parent to be genetically related to the child? No
If a single intended parent uses surrogacy, do they have to be genetically related to the child? No
Do the Intended Parents have to be married? No
Do two Intended Parents have to be opposite genders? No
Does Massachusetts allow pre-birth parentage orders to be issued for surrogacy? Yes
Does Massachusetts only allow a post-birth parentage order to be issued? No
Can you obtain both a pre and post birth order in Massachusetts for the same child? Yes
Can you obtain a parentage order if only the carrier resides in Massachusetts? Yes
Can you obtain a parentage order if only the intended parents reside in Massachusetts? Yes
Can you obtain a parentage order if only the birth occurs in Massachusetts? Yes
Can you obtain a parentage order if only the medical procedures/IVF Clinic is in Massachusetts? No
What is the basis for venue in Massachusetts? Where IPs live, where GC lives or where baby is anticipated to be born
Do results vary by venue in Massachusetts? No
Is a hearing required for a parentage order in Massachusetts? Depends on the judge; 80% no
Does Massachusetts have a passport office? Yes
How long does it take to obtain a birth certificate in Massachusetts? 2-3 business days
Will Massachusetts vital records honor a parentage order from another state? Yes, if it contains the requisite information
Does Massachusetts vital records require a parentage order from another state to be registered? No
How does a Massachusetts birth certificate list same-sex parents? All birth certificates say "Parent" "Parent"
Can an initial birth certificate be obtained naming the biological parent and the carrier in Massachusetts? Yes
Can the birth certificate be amended to include only the biological parent or both intended parents in Massachusetts? Yes - with a post-birth order
Do Massachusetts amended birth certificates say “amended” on them? No
Can intended parents in a surrogacy obtain an adoption order in Massachusetts? Yes, but there are jurisdictional considerations. Being born in MA is not enough to secure jurisdiction. This is a long, complicated answer - I had an entire Supreme Judicial Court case on this subject. Much easier to talk through!
Assisted Reproduction law and surrogacy involves many complex issues. Parties who are contemplating engaging in a surrogacy arrangement in the State of Massachusetts should not rely exclusively on these printed responses. All these issues should be discussed with an ART attorney who is experienced in surrogacy law. Answers to these questions will be impacted by numerous circumstances that are unique to your surrogacy arrangement.