SB 353 – AS INTRODUCED

2014 SESSION

14-2794

05/06

SENATE BILL 353

AN ACT recodifying RSA 168-B, relative to surrogacy.

SPONSORS: Sen. Bradley, Dist 3; Sen. Stiles, Dist 24; Sen. Soucy, Dist 18; Sen. Carson, Dist 14; Sen. Pierce, Dist 5; Rep. J. MacKay, Merr 14; Rep. Wallner, Merr 10

COMMITTEE: Judiciary

ANALYSIS

This bill recodifies RSA 168-B, relative to surrogacy.

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Explanation: Matter added to current law appears in bold italics.

Matter removed from current law appears [in brackets and struckthrough.]

Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

14-2794 05/06

STATE OF NEW HAMPSHIRE

In the Year of Our Lord Two Thousand Fourteen

AN ACT recodifying RSA 168-B, relative to surrogacy.

Be it Enacted by the Senate and House of Representatives in General Court convened:

1 Purpose. The purpose of this act is to modernize New Hampshire’s surrogacy law to reflect advances in assisted reproduction technologies and modernized surrogacy laws that have been enacted across the United States, and to meet the needs of individuals who wish to become parents, but physically cannot for whatever reason. Assisted reproductive technologies allow for the possibility of parenthood that otherwise would not be available for these individuals. In addition, modern families, who are looking for an appealing alternative to adoption due to their desire to have a child with the same genetic makeup of one, or both, of the intended parents, are increasingly looking to assisted reproductive technologies. There have been significant advancements in assisted reproductive technologies over the past few decades, and these technologies are rapidly growing in both use and acceptance, so much so that surrogacy is almost considered commonplace. However, despite the fact that the needs of modern families have been increasingly met through assisted reproductive technologies, specifically gestational surrogacy, our laws have not kept pace with advancing technology. As our society changes regarding opportunities for parenthood, it is important that New Hampshire’s governing law keeps pace and remains relevant to the needs of New Hampshire’s families. Currently in New Hampshire, there is unclear and complicated guidance for individuals who wish to benefit from assisted reproductive technologies and gestational surrogacy, and the present statute creates unnecessary encumbrances for those who wish to use advancements in assisted reproductive technologies for the creation of their families, so that such technologies are not utilized. As a result of the present statute, New Hampshire families have left the state in order to use and benefit from assisted reproductive technologies and gestational surrogacy. In response, and to codify current best legal practices regarding gestational surrogacy arrangements, this act:

I. Ensures that there is appropriate and clear statutory language that establishes modernized and consistent standards and procedural safeguards for the protection of all parties to gestational carrier arrangements and agreements, and to facilitate the use of assisted reproductive technologies in our modern society and in accordance with the public policy of this state;

II. Defines, confirms, and protects the legal status and best interests of children born as a result of gestational carrier arrangements and agreements prior to birth;

III. Protects the legal rights of intended parents in gestational carrier arrangements and agreements;

IV. Ensures that all parties in gestational carrier arrangements are legally protected and entering into gestational carrier agreements with the same rights, expectations, and responsibilities; and

V. Standardizes the minimum components of gestational carrier agreements, and recognizes that written gestational carrier agreements are valid and enforceable legal contracts.

2 Surrogacy. RSA 168-B is repealed and reenacted to read as follows:

CHAPTER 168-B

SURROGACY

168-B:1 Definitions. In this chapter:

I. “Assisted reproduction” means a method of causing pregnancy other than sexual intercourse. The term includes, but is not limited to:

(a) Insemination.

(b) Donation of eggs.

(c) Donation of embryos.

(d) In-vitro fertilization and transfer of embryos.

(e) Intracytoplasmic sperm injection.

(f) “Compensation” means payment of any valuable consideration for gestational carrier services in addition to payment for reasonable medical and ancillary costs and expenses.

III. “Donor” means an individual who contributes gamete(s) for the purpose of assisted reproduction, and who relinquishes all present and future parental and inheritance rights and obligations to any resulting child.

IV. “Embryo” means the fertilized egg.

V. “Embryo transfer” means all medical and laboratory procedures that are necessary to effectuate the transfer of an embryo into the uterine cavity.

VI. “Gamete” means either the ovum (egg) or the spermatozoa (sperm).

VII. “Gestational carrier” means a woman who is neither an intended parent nor a donor, who agrees to become pregnant by assisted reproduction with the intention of gestating and delivering the intended parent(s)’ child.

VIII. “Gestational carrier agreement” means a written agreement between the gestational carrier, her spouse or partner, if any, donor(s), if any, and the intended parent(s), pursuant to which the intended parent(s) agree(s) to become the parent(s) of the child resulting from assisted reproduction and to which the gestational carrier, her spouse or partner, if any, and donor(s), if any, relinquish(es) all present and future parental and inheritance rights and obligations to any resulting child.

IX. “Gestational carrier arrangement” means the process by which a woman attempts to carry and give birth to a child through assisted reproduction using the gamete(s) provided by the intended parent(s) and/or donor(s) which may or may not be genetically related to the intended parent(s), and to which the gestational carrier has made no genetic contribution.

X. “Health care provider” means a person who is duly licensed, certified, or authorized to provide health care, and includes all medical, psychological, counseling, and social work professionals.

XI. “Intended parent” means a person who enters into a gestational carrier arrangement and agreement with a gestational carrier to become a parent of any resulting child. In the case of a married couple, any reference to an intended parent shall include both spouses for all purposes of this chapter. This term shall include the intended mother(s), intended father(s), or a combination of both.

XII. “In vitro fertilization” means all medical and laboratory procedures that are necessary to effectuate the extracorporeal combining of egg and sperm and the resulting fertilization of the egg.

168-B:2 Applicability. This chapter does not apply to a child conceived by means other than assisted reproduction and the birth of that child by a gestational carrier.

168-B:3 Parental Status of a Gestational Carrier and Her Spouse or Partner, if Any. Neither a gestational carrier nor her spouse or partner, if any, shall be a parent of a child born as a result of assisted reproduction and a gestational carrier arrangement.

168-B:4 Parental Status of a Donor. A donor shall not be a parent of a child born as a result of assisted reproduction and a gestational carrier arrangement.

168-B:5 Parental Status of the Intended Parent. A child born as a result of assisted reproduction and a gestational carrier arrangement shall be considered the child of the intended parent(s) immediately upon the birth of the child. The parental rights of the intended parent(s) shall vest with the intended parent(s) immediately upon the birth of the child.

168-B:6 Rights and Responsibilities of Intended Parent. A person or persons intending to become a parent or parents of any child resulting from assisted reproduction and a gestational carrier arrangement, whether genetically related to the child or not, shall meet the following requirements at the time the gestational carrier agreement is executed:

(a) He, she, or they have completed a psychological/mental health evaluation; and

(b) He, she, or they have undergone legal consultation with independent legal counsel regarding the terms of the gestational carrier agreement and have been advised of the potential legal consequences of the gestational carrier agreement.

168-B:7 Eligibility of a Gestational Carrier. Prior to entering into a gestational carrier arrangement and prior to executing a gestational carrier agreement to act as a gestational carrier, a woman shall meet all of the following requirements:

(a) She is at least 21 years of age;

(b) She has given birth to at least one child;

(c) She has completed a physical medical evaluation relating to the anticipated pregnancy, and shall be in good health without recurrent conditions that may affect pregnancy;

(d) She has completed a psychological/mental health evaluation; and

(e) She, and her spouse or partner, if any, have undergone legal consultation with independent legal counsel regarding the terms of the gestational carrier agreement and have been advised of the potential legal consequences of the gestational carrier agreement.

168-B:8 Enforceability of Gestational Carrier Agreement. To best protect all parties entering into a gestational carrier arrangement, a gestational carrier agreement shall meet the minimum requirements under RSA 168-B:9. A gestational carrier agreement is a legal contract that is presumed to be valid and enforceable.

168-B:9 Requirements for a Gestational Carrier Agreement. A gestational carrier agreement shall meet all of the following minimum requirements:

(a) It shall be in writing.

(b) It shall be executed prior to the commencement of any medical procedures, other than the medical or psychological/mental health evaluations necessary to determine the gestational carrier’s eligibility pursuant to RSA 168-B:7, in furtherance of the gestational carrier arrangement by a gestational carrier meeting the eligibility requirements of RSA 168-B:7, and her spouse or partner, if any, and by the intended parent(s) meeting the eligibility requirements of RSA 168-B:6.

(c) The gestational carrier, donor(s), if any, and the intended parent(s) shall be represented by separate, independent legal counsel in all matters regarding the gestational carrier arrangement and agreement.

(d) It shall expressly provide for the following:

(1) The express written agreement of the gestational carrier to:

(A) Undergo embryo transfer, become pregnant by means of assisted reproduction, and attempt to carry and give birth to the resulting child;

(B) Relinquish all rights, obligations, and duties as a parent of a child conceived through assisted reproduction; and

(C) Surrender legal and physical custody of the resulting child to the intended parent(s) immediately upon birth of the child.

(2) The express written agreement of the gestational carrier’s spouse or partner, if any, to:

(A) Abide by the obligations imposed on the gestational carrier pursuant to the terms of the gestational carrier agreement; and

(B) Surrender legal and physical custody of the resulting child to the intended parent(s) immediately on the birth of the child.

(3) The express written agreement of the intended parent(s) to:

(A) Become the parent(s) of the resulting child immediately upon birth of the child;

(B) Accept sole legal and physical custody of the resulting child immediately upon birth of the child; and

(C) Assume sole responsibility for the support of the resulting child immediately upon the birth of the child.

(4) The right of the gestational carrier to utilize the services of duly licensed, certified, or otherwise authorized health care provider(s) of her choosing, after consultation with and approval of the intended parent(s), to provide her care during the pregnancy.

(5) The agreement of all parties that the intended parent(s) have the authority to make all decisions affecting the health of the resulting child, both in utero and after the child’s birth, with the exception of an instance where there is a risk of harm to the gestational carrier, as described under subparagraph (6).

(6) The agreement of all parties that in the event there is a risk of physical harm to the gestational carrier, the gestational carrier shall have the authority to make all decisions affecting her own health.

(7) The gestational carrier’s agreement to undergo all medical exams, treatments, and fetal monitoring procedures that the health care provider(s) recommend(s) for the safety and success of the pregnancy.

(8) The gestational carrier’s agreement to completely abstain from any activities that the intended parent(s) and/or the health care provider(s) reasonably believe(s) to be unsafe, risky, and/or harmful to the pregnancy and future health of the resulting child, including, without limitation, smoking, drinking alcohol, using illegal drugs and substances, using non-prescribed drugs, using prescription drugs not authorized by a health care provider aware of the gestational carrier’s pregnancy, exposure to radiation, or any other activities not recommended or proscribed by a health care provider.

(9) The agreement of the intended parent(s) to pay the gestational carrier reasonable compensation as consideration for the gestational carrier agreement, if any is so negotiated under subparagraph (10).

(10) The agreement of all parties that the consideration, if any, paid to a donor and/or to a prospective gestational carrier shall be negotiated good faith between the party paying the consideration and the party receiving the consideration.

(11) Compensation, if any, shall not be conditioned upon the purported quality or genome-related traits of the gamete(s) or embryo(s).

(12) The agreement of the intended parent(s) to pay for or reimburse the gestational carrier for reasonable expenses, including, without limitation, medical, counseling, legal, or other expenses, related to the gestational carrier arrangement.

(13) The agreement of all parties that any reasonable compensation paid to the gestational carrier, with the exception of monies for expenses listed in subparagraph (12), be placed in escrow with an independent escrow agent pursuant to a written escrow agreement prior to the gestational carrier’s commencement of any medical procedure, other than the medical or psychological/mental health evaluations necessary to determine the gestational carrier’s eligibility pursuant to RSA 168-B:7.

168-B:10 Marriage/Domestic Partnership of a Gestational Carrier During the Gestational Carrier Arrangement. The marriage or domestic partnership of a gestational carrier after she executes a gestational carrier agreement does not affect the validity or the terms of the gestational carrier agreement, and the legal spouse or domestic partner shall assume his or her responsibilities under this chapter.

168-B:11 Death of the Intended Parent.

(a) Prior to any embryo transfer pursuant to the gestational carrier arrangement, the intended parent(s) shall make guardianship provisions for the prospective child by amending his, her, or their existing estate planning documents, or by executing estate planning documents containing such provisions if he, she, or they have no existing estate planning documents.

(b) In the event that the intended parent(s) predecease(s) the birth of the resulting child, the terms and conditions of the gestational carrier agreement shall remain in full force and effect, and the resulting child shall be delivered into the sole care and custody of the guardian nominated in the estate planning documents of the intended parent(s), if both parents are deceased, or into the sole care and custody of the surviving intended parent if only one of the 2 intended parents is deceased.

(c) Any child conceived by assisted reproduction and pursuant to the terms of the gestational carrier agreement shall have all testamentary and inheritance rights from the intended parent(s) as a natural child, and shall have no testamentary or inheritance rights from the gestational carrier and her spouse or partner, if any. The intended parent(s) shall have testamentary and inheritance rights from the resulting child as parents.

168-B:12 Non-Compliance. Non-compliance by the gestational carrier, the gestational carrier’s spouse or partner, if any, by donor(s), if any, or by the intended parent(s) occurs when that party breaches a provision of this chapter and/or a provision of the gestational carrier agreement.

168-B:13 Effect of Non-Compliance. Except as otherwise provided in this chapter, in the event of a party’s non-compliance with the requirements of this chapter and/or with a provision of the gestational carrier agreement, a court of competent jurisdiction shall determine the respective rights and obligations of the parties.

168-B:14 Remedies.

I. Except as expressly provided in the gestational carrier agreement and paragraph III, the intended parent(s) shall be entitled to all remedies available at law or equity, including, but not limited to, specific performance.

II. Except as expressly provided in the gestational carrier agreement and paragraph III, the gestational carrier shall be entitled to all remedies available at law or equity, including, but not limited to, specific performance.

III. Specific performance is not an available remedy for a breach by the gestational carrier of a gestational carrier agreement term that requires her to be impregnated.

IV. A breach of a provision of this chapter or of the gestational carrier agreement by the intended parent(s) shall not relieve such intended parent(s) of the intended parent(s)’ obligations imposed by this chapter.

V. In the event of a breach of a provision of this chapter or of the gestational carrier agreement by the intended parent(s), the gestational carrier shall be entitled to receive all compensation and other monies due to the gestational carrier under the gestational carrier agreement.

VI. A breach of a provision of this chapter or of the gestational carrier agreement by the gestational carrier shall not relieve the gestational carrier of her obligations imposed by this chapter.

VII. If after the birth of the resulting child, the child is, in the opinion of the child’s pediatrician or other medical doctor(s), not healthy and/or is abnormal in a material respect, which, to a medical certainty, is the proximate result of gestational carrier’s act or omission constituting a breach of a provision of this chapter or of the gestational carrier agreement, then all compensation and monies to be paid to the gestational carrier under the gestational carrier agreement shall be forfeited by the gestational carrier and refunded to the intended parent(s). The gestational carrier shall also be liable for child support to the resulting child under the laws of this state, which shall be determined by a court of competent jurisdiction.

168-B:15 Irrevocability. No action to invalidate a gestational carrier agreement meeting the requirements of this chapter or to challenge the rights of parentage established pursuant to this chapter shall commence after 12 months from the date of the birth of the child resulting from assisted reproduction.

168-B:16 Rulemaking. The department of health and human services shall adopt rules, pursuant to RSA 541-A, to carry out its duties under this chapter. Until such time as the department of health and human services adopts rules pursuant to this section, medical evaluations and procedures required under this chapter shall be conducted in accordance with the relevant sections of guidelines published by the American Fertility Society.

168-B:17 Severability. If any provision of this chapter or the application thereof to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the chapter, which can be given effect without the invalid provisions or applications, and to this end the provisions of this chapter are severable.

3 Effective Date. This chapter shall take effect upon its passage.