SENATE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 2912

The Commonwealth of Massachusetts

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In the One Hundred and Ninety-Third General Court
(2023-2024)

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SECTION 1. Section 1 of chapter 46 of the General Laws, as appearing in the 2022 Official Edition, is hereby amended by striking out the second paragraph and inserting in place thereof the following paragraph:-

In the record of births, name, date of birth, place of birth and sex of child; legal names, dates of birth, residences, places of birth and surname at birth or adoption of the parent or parents. In the record of birth of a child born to parents not married to each other, the name of and other facts relating to the other parent or parents shall not be recorded except as provided in section 2 of chapter 209C where parentage has been acknowledged or adjudicated under the laws of the commonwealth or under the law of any other jurisdiction.

SECTION 2. Section 4B of said chapter 46 is hereby repealed.

SECTION 3. Section 13 of said chapter 46, as appearing in the 2022 Official Edition, is hereby amended by striking out, in lines 53 to 56, inclusive, the words “paternity by a court or administrative agency of competent jurisdiction in the commonwealth and the court orders the state registrar to amend the birth certificate to include the information relating to the father” and inserting in place thereof the following words:- parentage by a court or administrative agency of competent jurisdiction in the commonwealth and the court orders the state registrar to originally issue or to amend the birth certificate to include the information relating to the parentage of the child.

SECTION 4. Chapter 209C of the General Laws is hereby amended by striking out the title, as so appearing, and inserting in place thereof the following title:- NONMARITAL CHILDREN AND PARENTAGE OF CHILDREN.

SECTION 5. Section 1 of chapter 209C of the General Laws, as so appearing, is hereby amended by inserting after the first sentence the following sentence:- A child shall have the same rights and protections under law to parentage without regard to the marital status, gender, gender identity or sexual orientation of their parents or the circumstances of the child’s birth, including whether the child was born as a result of assisted reproduction or surrogacy.

SECTION 6. Said section 1 of said chapter 209C, as so appearing, is hereby further amended by striking out, in lines 7 and 8, 14, 15 and 17, the word “paternity” and inserting in place thereof, in each instance, the following word:- parentage.

SECTION 7. Said section 1 of said chapter 209C, as so appearing, is hereby further amended by striking out, in lines 11 and 20, the words “child born out of wedlock” and inserting in place thereof, in each instance, the following words:- nonmarital child.

SECTION 8. Said section 1 of said chapter 209C, as so appearing, is hereby further amended by striking out, in lines 11 and 12, the words “a man and woman” and inserting in place thereof the following word:- persons. 

SECTION 9. Said section 1 of said chapter 209C, as so appearing, is hereby further amended by striking out, in lines 20 and 25, the word “his”, and inserting in place thereof, in each instance, the following word:- their.

SECTION 10. Said chapter 209C is hereby further amended by inserting after section 1 the following section:-

Section 1A. For the purposes of this chapter the following terms shall have the following meanings, unless the context clearly requires otherwise:

“Acknowledged parent”, a person who has established a parent-child relationship through a voluntary acknowledgement of parentage.

“Adjudicated parent”, a person who has been adjudicated to be a parent of a child by a court of competent jurisdiction.

“Alleged genetic parent”, a person who is alleged to be or alleges to be a genetic parent of a child whose parentage has not been adjudicated; provided, however, that “alleged genetic parent” shall include a putative parent, an alleged genetic father and an alleged genetic mother; and provided further, that “alleged genetic parent” shall not include a presumed parent under section 6, an individual whose parental rights have been terminated or declared not to exist or a donor as described in section 27.

“Assisted reproduction”, a method of causing pregnancy other than sexual intercourse including, but not limited to, artificial insemination, intrauterine, intracervical or vaginal insemination, donation of gametes or embryos, in vitro fertilization and transfer of embryos and intracytoplasmic sperm injection.

“Donor”, a person who provides a gamete or embryo intended for use in assisted reproduction or gestation, whether or not for consideration; provided, however, that this term shall not include a person who consents to assisted reproduction with the intent to be a parent of the resulting child.

“Genetic surrogacy agreement”, a surrogacy agreement involving a genetic surrogate.

“Genetic surrogate”, a person who is not an intended parent and agrees to become pregnant through assisted reproduction using their own gamete under a genetic surrogacy agreement as provided in this chapter.

“Gestational surrogacy agreement”, a surrogacy agreement involving a gestational surrogate.

“Gestational surrogate”, a person who is not an intended parent and agrees to become pregnant through assisted reproduction using gametes that are not their own under a gestational surrogacy agreement as provided in this chapter.

“Intended parent”, a person, whether married or unmarried, who manifests an intent to be legally bound as a parent of a child resulting from assisted reproduction.

“Nonmarital child”, a child born to persons who are not married to each other.

“Parent”, a person who has established parentage of a child through: (i) birth except as otherwise provided in sections 28 to 28P, inclusive; (ii) presumption pursuant to section 6; (iii) adjudication by a court of competent jurisdiction; (iv) adoption pursuant to chapter 210; (v) acknowledgement pursuant to section 11; (vi) de facto parentage pursuant to section 25; (vii) assisted reproduction pursuant to section 27; or (viii) surrogacy pursuant to sections 28 to 28P, inclusive.

“Parentage” or “parent-child relationship”, the legal relationship between a child and a parent of the child.

“Presumed parent”, a person who is presumed to be a parent of a child pursuant to section 6, unless the presumption is overcome in a judicial proceeding, a valid denial of parentage is made under section 11 or a court adjudicates the person to be a parent.

“Surrogacy agreement”, an agreement between 1 or more intended parents and a person who is not an intended parent in which that person agrees to become pregnant through assisted reproduction and which provides that each intended parent is a parent of a child conceived under the agreement.

“Surrogate”, a genetic surrogate or gestational surrogate.

SECTION 11. Section 2 of said chapter 209C, as appearing in the 2022 Official Edition, is hereby amended by striking out, in line 1, the word “Paternity” and inserting in place thereof the following word:- Parentage.

SECTION 12. Said section 2 of said chapter 209C, as so appearing, is hereby further amended by striking out, in lines 5, 6, 12, 13, 16 and 18, the word “paternity” and inserting in place thereof, in each instance, the following word:- parentage.

SECTION 13. Section 3 of said chapter 209C, as so appearing, is hereby amended by striking out, in lines 3, 7, 32, 35 and 36 and 51, the word “paternity” and inserting in place thereof, in each instance, the following word:- parentage.

SECTION 14. Said section 3 of said chapter 209C, as so appearing, is hereby further amended by inserting after the word “parentage”, in line 4, the following words:- under this chapter.

SECTION 15. Said section 3 of said chapter 209C, as so appearing, is hereby further amended by striking out, in line 13, the word “his” and inserting in place thereof the following word:- their.

SECTION 16. Section 4 of said chapter 209C, as so appearing, is hereby amended by striking out, in lines 1 and 11, the word “paternity” and inserting in place thereof, in each instance, the following word:- parentage.

SECTION 17. Section 5 of said chapter 209C, as so appearing, is hereby amended by striking out, in lines 1 and 2, 19, 55, 60 and 62, the word “paternity” and inserting in place thereof, in each instance, the following word:- parentage.

SECTION 18. Said section 5 of said chapter 209C, as so appearing, is hereby further amended by striking out, in line 3, the word “mother” and inserting in place thereof the following words:- person who gave birth to the child.

SECTION 19. Said section 5 of said chapter 209C, as so appearing, is hereby further amended by striking out, in lines 4 and 21, the word “himself” and inserting in place thereof, in each instance, the following word:- themselves.

SECTION 20. Said section 5 of said chapter 209C, as so appearing, is hereby further amended by striking out, in lines 4 and 9, each time it appears, the word “father” and inserting in place thereof, in each instance, the following words:- other parent.

SECTION 21. Said section 5 of said chapter 209C, as so appearing, is hereby further amended by striking out, in line 7, the words “mother if the mother” and inserting in place thereof the following words:- person who gave birth to the child if that person.

SECTION 22. Said section 5 of said chapter 209C, as so appearing, is hereby further amended by striking out, in line 17, the words “mother of the child” and inserting in place thereof the following words:- person who gave birth to the child.

SECTION 23. Said section 5 of said chapter 209C, as so appearing, is hereby further amended by striking out, in lines 21 and 22, the words “father unless he is or was the mother’s husband” and inserting in place thereof the following words:- parent unless such parent is or was the spouse of the person who gave birth to the child.

SECTION 24. Said section 5 of said chapter 209C, as so appearing, is hereby further amended by striking out subsection (b) and inserting in place thereof the following subsection:-

(b) Voluntary acknowledgments of parentage may be executed by the person who gave birth and either an alleged genetic parent, presumed parent or intended parent as provided in this chapter, whether either or both is a minor, and may be registered pursuant to section 11 only if the signatures of both signatories are notarized. If the person who gave birth to the child was or is married to a spouse other than the other parent and the child’s birth occurs during the marriage or within 300 days of its termination by divorce, a voluntary acknowledgment of parentage naming the other parent may be executed by the person who gave birth and the other parent only if the person who gave birth and their spouse or former spouse at the time of the child’s birth or conception sign an affidavit denying that the spouse is the parent of the child; provided, however, that where the marriage has been terminated by annulment or by the death of either spouse, parentage of the other parent may only be established by filing a complaint to establish parentage as provided in this chapter. Prior to signing a voluntary acknowledgment of parentage at the hospital or thereafter at the office of the city or town clerk as part of the birth registration process pursuant to section 3C of chapter 46, with the department of transitional assistance, with the IV–D agency set forth in chapter 119A, with any agency designated by the United States Secretary of Health and Human Services or with any official of a court, a person who gave birth and the other parent shall receive notice orally, or through the use of video or audio equipment, and in writing of alternatives to signing the acknowledgment, including the availability of genetic marker testing, as well as the benefits and responsibilities with respect to child support, custody and visitation that may arise from signing the acknowledgment and subsequently filing the acknowledgment with the court or with the registrar of vital records and statistics as provided in this chapter.

SECTION 25. Section 6 of said chapter 209C, as so appearing, is hereby amended by striking out, in lines 1 and 2, the words “In all actions under this chapter a man is presumed to be the father of a child and must be joined as a party” and inserting in place thereof the following words:- A person is presumed to be the parent of a child and shall be joined as a party in all actions under this chapter.

SECTION 26. Said section 6 of said chapter 209C, as so appearing, is hereby further amended by striking out, in lines 3, 6, 11, 14, 16 and 18, the word “he” and inserting in place thereof, in each instance, the following words:- the person.

SECTION 27. Said section 6 of said chapter 209C, as so appearing, is hereby further amended by striking out, in line 3, 7, 12 and 19, the word “mother” and inserting in place thereof, in each instance, the following words:- person who gave birth to the child.

SECTION 28. Said section 6 of said chapter 209C, as so appearing, is hereby further amended by striking out, in line 17, the word “paternity” and inserting in place thereof the following word:- parentage.

SECTION 29. Said section 6 of said chapter 209C, as so appearing, is hereby further amended by striking out, in lines 21 to 23, inclusive, the words “he has acknowledged paternity in a parental responsibility claim as provided in section four A of chapter two hundred and ten and the mother” and inserting in place thereof the following words:- the person has acknowledged parentage in a parental responsibility claim as provided in section 4A of chapter 210 and the person who gave birth to the child.

SECTION 30. Said section 6 of said chapter 209C, as so appearing, is hereby further amended by striking out, in lines 25 to 27, inclusive, the words “his consent and the consent of the child’s mother, he is named as the child’s father” and inserting in place thereof the following words:- the person’s consent and the consent of the person who gave birth to the child, the person is named as the child’s parent.             

SECTION 31. Said section 6 of said chapter 209C, as so appearing, is hereby further amended by striking out subsection (b) and inserting in place thereof the following subsection:-

(b) Notwithstanding subsection (a), a spouse or former spouse shall not be required to be joined as a party if that person’s non-parentage of the child has previously been adjudicated in a proceeding between the spouse and the person who gave birth to the child in a court or administrative agency of competent jurisdiction.

SECTION 32. Section 7 of said chapter 209C, as so appearing, is hereby amended by striking out, in lines 3 and 4 and 8, the word “paternity” and inserting in place thereof, in each instance, the following word:- parentage.

SECTION 33. Section 8 of said chapter 209C, as so appearing, is hereby amended by striking out, in lines 1, 2, 5 and 15, the word “paternity” and inserting in place thereof, in each instance, the following word:- parentage.

SECTION 34. Said section 8 of said chapter 209C, as so appearing, is hereby further amended by striking out, in line 4, the word “his” and inserting in place thereof the following words:- the defendant’s.

SECTION 35. Said section 8 of said chapter 209C, as so appearing, is hereby further amended by striking out, in line 7, the words “mother or putative father submits” and inserting in place thereof the following words:- person who gave birth to the child or alleged genetic parent submits sufficient evidence of parentage, which may include evidence.

SECTION 36. Said section 8 of said chapter 209C, as so appearing, is hereby further amended by striking out, in lines 12 and 13, the words “father or mother” and inserting in place thereof the following word:- parent.

SECTION 37. Said section 8 of said chapter 209C, as so appearing, is hereby further amended by striking out, in line 16, the word “mother” and inserting in place thereof the following words:- person who gave birth to the child.

SECTION 38. Section 9 of said chapter 209C, as so appearing, is hereby amended by striking out, in line 21, the word “his” and inserting in place thereof the following words:- the defendant’s.

SECTION 39. Said section 9 of said chapter 209C, as so appearing, is hereby further amended by striking out, in line 27, the word “mother” and inserting in place thereof the following words: another parent.

SECTION 40. Subsection (a) of section 10 of said chapter 209C, as so appearing, is hereby amended by striking out the first paragraph and inserting in place thereof the following paragraph:-

Upon or after an adjudication or voluntary acknowledgment of parentage, the court may award custody of a nonmarital child to either parent or to them jointly or to another suitable person as hereafter further specified as may be appropriate in the best interests of the child.

SECTION 41. Said section 10 of said chapter 209C, as so appearing, is hereby further amended by striking out subsection (b) and inserting in place thereof the following subsection:-

(b) Prior to or in the absence of an adjudication or voluntary acknowledgment of parentage, the person who gave birth shall have custody of a nonmarital child. In the absence of an order or judgment of a probate and family court relative to custody, the person who gave birth shall continue to have custody of a nonmarital child after an adjudication of parentage or voluntary acknowledgment of parentage.

SECTION 42. Section 11 of said chapter 209C, as so appearing, is hereby amended by striking out, in line 2, the words “putative father” and inserting in place thereof the following words:- alleged genetic parent, presumed parent or intended parent.

SECTION 43. Said section 11 of said chapter 209C, as so appearing, is hereby further amended by striking out, in line 3, the words “mother of” and inserting in place thereof the following words:- person who gave birth to.

SECTION 44. Said section 11 of said chapter 209C, as so appearing, is hereby further amended by striking out, in lines 7, 16, 20, 22 and 37, the word “paternity” and inserting in place thereof, in each instance, the following word:- parentage.

SECTION 45. Said section 11 of said chapter 209C, as so appearing, is hereby further amended by striking out, in line 21, the words “by such putative father and mother”.

SECTION 46. Subsection (a) of said section 11 of said chapter 209C, as so appearing, is hereby amended by striking out the tenth sentence and inserting in place thereof the following sentence:- If either party rescinds the acknowledgment in a timely fashion and the basis of the acknowledgment was genetic parentage, the court shall order genetic marker testing and proceed to adjudicate parentage or nonparentage in accordance with this chapter; provided, however, that the rescinded acknowledgment shall constitute the proper showing required for an order to submit to such testing; and provided further, that the rescinded acknowledgment shall be admissible as evidence of the alleged genetic parent’s parentage and shall serve as sufficient basis for admitting the report of the results of genetic marker tests.

SECTION 47. Said section 11 of said chapter 209C, as so appearing, is hereby further amended by striking out, in line 56, the word “nonpaternity” and inserting in place thereof the following word:- nonparentage.

SECTION 48. Said section 11 of said chapter 209C, as so appearing, is hereby further amended by striking out, in line 59, the words “a mother and father” and inserting in place thereof the following word:- parents.

SECTION 49. Section 12 of said chapter 209C, as so appearing, is hereby amended by striking out, in line 2, the word “paternity” and inserting in place thereof the following word:- parentage.

SECTION 50. Section 13 of said chapter 209C, as so appearing, is hereby amended by striking out, in lines 1 and 2, the words “paternity or in which paternity” and inserting in place thereof the following words:- parentage or in which parentage.

SECTION 51. Said section 13 of said chapter 209C, as so appearing, is hereby further amended by striking out, in lines 7 to 9, inclusive, the words “father is adjudicated not to be the father of the child; provided, however, that the child, the child’s mother, the person adjudicated to be the father” and inserting in place thereof the following words:- parent is adjudicated not to be the parent of the child; provided, however, that the child, the person who gave birth to the child, the person adjudicated to be the parent.

SECTION 52. Said chapter 209C is hereby further amended by striking out section 14, as so appearing, and inserting in place thereof the following section:-

Section 14. Except as otherwise provided in this chapter, an action to establish parentage of a child may be instituted during pregnancy but shall only be filed by the person who is to give birth to the child or such person’s representative or by the IV-D agency as set forth in chapter 119A on behalf of the person who is to give birth. In the case of any complaint brought prior to the birth of the child, no final judgment on the issue of parentage shall be made until after the birth of the child; provided, however, that the court may order temporary support or health care coverage.

SECTION 53. Section 16 of said chapter 209C, as so appearing, is hereby amended by striking out subsections (c) to (e), inclusive, and inserting in place thereof the following 3 subsections:-

(c) In an action pursuant to this chapter, the person who gave birth and the alleged genetic parent shall be competent to testify and no privilege or disqualification created under chapter 233 shall prohibit testimony by a spouse or former spouse which is otherwise competent. If the person who gave birth is or was married, both that person and their spouse or former spouse may testify to parentage of the child.

(d) In an action to establish parentage, testimony relating to sexual access to the person who gave birth by an unidentified person at any time or by an identified person at any time other than the probable time of conception of the child is inadmissible in evidence unless offered by the person who gave birth.

(e) In an action to establish parentage based on alleged genetic parentage, the court may view the person who gave birth, the child and the alleged genetic parent to note any resemblance among the parties notwithstanding the absence of expert testimony.

SECTION 54. Said section 16 of said chapter 209C, as so appearing, is hereby further amended by striking out, in line 25, the word “mother” and inserting in place thereof the following words:- person who gave birth to the child.

SECTION 55. Said section 16 of said chapter 209C, as so appearing, is hereby further amended by striking out, in line 36, the word “paternity” and inserting in place thereof the following word:- parentage.

SECTION 56. Section 17 of said chapter 209C, as so appearing, is hereby amended by striking out, in lines 1 and 2, the words “paternity of a child born out of wedlock” and inserting in place thereof the following words:- parentage of a nonmarital child based on alleged genetic parentage.

SECTION 57. Said section 17 of said chapter 209C, as so appearing, is hereby further amended by striking out, in lines 4, 9, 10, 13, 26 and 28, the word “mother” and inserting in place thereof, in each instance, the following words:- person who gave birth to the child.

SECTION 58. Said section 17 of said chapter 209C, as so appearing, is hereby further amended by striking out, in lines 4, 9, 10, 13, 26, 28, 31, 48 and 49, the words “putative father” and inserting in place thereof, in each instance, the following words:- alleged genetic parent.

SECTION 59. Said section 17 of said chapter 209C, as so appearing, is hereby further amended by striking out, in lines 21 and 22, the words “putative father’s” and inserting in place thereof the following words:- alleged genetic parent’s.

SECTION 60. Said section 17 of said chapter 209C, as so appearing, is hereby further amended by striking out, in lines 22 and 30, the word “paternity” and inserting in place thereof, in each instance, the following words:- genetic parentage.

SECTION 61. Said section 17 of said chapter 209C, as so appearing, is hereby further amended by striking out, in lines 31 and 32 and in line 49, the first time it appears, the word “father” and inserting in place thereof, in each instance, the following word:- parent.

SECTION 62. Said section 17 of said chapter 209C, as so appearing, is hereby further amended by adding the following sentence:- Genetic testing shall not be used to challenge the parentage of an individual who is a parent under sections 25, 27 and 28 to 28P, inclusive, or to establish the parentage of an individual who is a donor as provided in said sections.

SECTION 63. Section 21 of said chapter 209C, as so appearing, is hereby amended by striking out, in line 4, the word “paternity” and inserting in place thereof the following word:- parentage.

SECTION 64. Section 23 of said chapter 209C, as so appearing, is hereby amended by striking out, in lines 1, 10, 11 and 14, the word “paternity”, and inserting in place thereof, in each instance, the following word:- parentage.

SECTION 65. Said chapter 209C is hereby further amended by adding the following 20 sections:-

Section 25. (a) This section shall apply to nonmarital and marital children.

(b) A proceeding to adjudicate parentage of a child under this section may be commenced only by a person who: (i) is alive when the proceeding is commenced; and (ii) claims to be a de facto parent of the subject child under this section.

(c) A proceeding under this section shall be commenced during a child’s lifetime and before the child attains 18 years of age.

(d) Proceedings under this section shall be governed by the Massachusetts Rules of Domestic Relations Procedure.

(e) All parents, legal guardians and legal custodians of the subject child shall be entitled to notice.

(f) The plaintiff shall file a verified complaint alleging specific facts to support each element required to establish de facto parentage as set forth in subsection (i), along with any other pleadings, affidavits or information required by the court. The verified complaint shall be served on all parents, legal guardians and legal custodians of the child and any other party to the proceeding. Prior to an adjudication of the merits, and within 60 days of the commencement of a proceeding under this section, the court shall determine, based on the pleadings, whether the plaintiff has alleged facts sufficient to satisfy each element required to establish de facto parentage. Upon request made by a party entitled to notice or upon the court’s own initiative, the court may hold a hearing on the sufficiency of the pleadings; provided, however, that if the court holds any such hearing, the hearing shall be held on an expedited basis. Failure of a pleading to meet these standards shall constitute grounds for the court to enter a sua sponte judgment of dismissal without prejudice.

(g) Prior to an adjudication of the merits, and within 60 days of the commencement of a proceeding under this section, the court shall determine whether the plaintiff has standing to seek an adjudication of parentage of a child under this section. Upon request made by a party entitled to notice or upon the court’s own initiative, the court may hold a hearing on the issue of standing; provided, however, that any such hearing shall be held on an expedited basis; and provided further, that a hearing shall be required and there shall be a rebuttable presumption against standing if the court finds by a preponderance of the evidence that:

(i) the plaintiff is or was the defendant to: (A) an abuse prevention order issued after notice and hearing pursuant to chapter 209A; (B) a protection order issued pursuant to section 34B or 34C of chapter 208; or (C) a harassment prevention order issued pursuant to chapter 258E, involving the child, a parent of the child or a household member of the child;

(ii) the department of children and families has made a determination supporting an allegation of abuse against the plaintiff with respect to the subject child or another child in the same household;

(iii) a defendant parent has been an active deployed member of the military during the past 3 years; 

(iv) a defendant parent executed a military family care plan and but for the plan, the plaintiff would not meet at least 1 of the requirements of subsection (i), unless the defendant consents in writing and such written consent is filed with the complaint; or

(v) the plaintiff is or was the foster parent of the child and but for the plaintiff’s role as foster parent, the plaintiff would not meet at least 1 of the requirements of subsection (i).

(h) A plaintiff may file and serve a motion seeking a temporary order of contact between the subject child and the plaintiff contemporaneously with the complaint. After a hearing, the court may enter a temporary order concerning contact between the child and the plaintiff. No temporary order shall issue before a determination of standing; provided, however, that a hearing on the motion may occur on the same date as any hearing under subsections (f) or (g).

(i) Subject to subsection (j), the court shall adjudicate a plaintiff with standing in a proceeding commenced under this section to be a legal parent of the subject child if the plaintiff demonstrates by clear and convincing evidence that: (i) the plaintiff resided with the child as a regular member of the child’s household for not less than 3 years or 40 per cent of the child’s life, whichever is shorter, except in extraordinary circumstances for good cause shown as the court may determine at the court's discretion; (ii) the plaintiff engaged in consistent caregiving of the child, including, but not limited to, shaping the child’s daily routine, addressing the child’s developmental needs and providing for the child’s education and medical care, individually or cooperatively with another parent; (iii) the plaintiff undertook full and permanent responsibilities of a parent of the child without expectation or payment of financial compensation; (iv) the plaintiff held out the child as the plaintiff’s child; (v) the plaintiff established a bonded and dependent relationship with the child that is parental in nature; (vi) each parent of the child consented to the bonded and dependent relationship required under clause (v); provided, however, that for the purposes of this section, consent may include that each parent, over a period of not less than 6 months: (a) held out the plaintiff as a parent of the child; and (b) engaged in shared decision making with the plaintiff regarding significant issues of the child’s education, health and welfare; provided further, that the court may determine that a parent has impliedly consented where that parent has not, without good cause, meaningfully engaged with the subject child through direct contact, participation in decision making or regular financial support for a period of 2 years; provided further, that good cause may include evidence that the parent attempted to meaningfully engage with the subject child by regularly requesting contact or participation in decision making but was prevented from doing so by another person; and provided further, that a notarized document affirming consent executed by a parent shall be evidence of that parent’s consent; and (vii) adjudicating the plaintiff to be the child’s parent is in the best interest of the child. In making this determination, the court shall consider evidence of past or present abuse by the plaintiff toward a parent or the child as a factor contrary to the best interest of the child; provided, however, that a finding by a preponderance of the evidence that the plaintiff engaged in duress, coercion or threat of harm in order to establish any of the elements of clauses (i) to (vi), inclusive, shall be considered evidence of abuse; provided further, that a finding by a preponderance of the evidence that a pattern or serious incident of abuse as defined in section 10 by the plaintiff against a parent or child has occurred shall create a rebuttable presumption that it is not in the best interest of the child that the plaintiff be adjudicated a parent; and provided further, that where there is credible evidence of abuse and the court adjudicates the plaintiff to be a parent of the subject child, the court shall make detailed written findings on the presence and nature of the abuse, its effect on the child and its impact on the plaintiff’s parenting ability.

(j) Subject to other limitations in this section, if in a proceeding to adjudicate the plaintiff as a de facto parent, there is more than 1 defendant parent and the court determines that the requirements of subsection (i) are satisfied, the court shall adjudicate parentage under subsection (c) of section 26.

(k) The adjudication of a plaintiff as a de facto parent under this section shall not affect the legal parentage of any other parent to the child and shall not be considered evidence of parental unfitness of a defendant parent to the child.

(l) Custody, parenting time, visitation and child support shall be determined in accordance with applicable laws, rules, regulations, orders and guidelines.

(m) Nothing in this section shall be interpreted to preclude an action in equity pursuant to section 6 of chapter 215 to establish a third-party right to visitation.

Section 26. (a) In a proceeding to adjudicate competing claims of, or challenges to, parentage of a child by 2 or more persons, the court shall adjudicate parentage in the best interest of the child, based on: (i) the age of the child; (ii) the length of time during which each person assumed the role of parent of the child; (iii) the nature of the relationship between the child and each person; (iv) the harm to the child if the relationship between the child and each person is not recognized; (v) the basis for each person’s claim to parentage of the child; and (vi) other equitable factors arising from the disruption of the relationship between the child and each person or the likelihood of other harm to the child.

(b) If a person challenges parentage based on the results of genetic testing, in addition to the factors listed in subsection (a), the court shall consider: (i) the facts surrounding the discovery that the person might not be a genetic parent of the child; and (ii) the length of time between the time that the person was placed on notice that the person might not be a genetic parent and the commencement of the proceeding.

(c) The court may adjudicate a child to have more than 2 parents if the court finds that it is in the best interest of the child. A finding of best interest of the child under this section does not require a finding of unfitness of any parent or person seeking an adjudication of parentage.

(d) Custody, parenting time, visitation and child support shall be determined in accordance with applicable laws, rules, regulations, orders and guidelines.

Section 27. (a) This section shall apply to nonmarital and marital children. This section shall not apply to the parentage of a child conceived by sexual intercourse or assisted reproduction under a surrogacy agreement under sections 28 to 28P, inclusive.

(b) Venue for a proceeding to adjudicate parentage under this section shall be in the county in which: (i) the child resides or was born or is reasonably expected to be born; (ii) any parent or intended parent of the child resides; or (iii) a proceeding has been commenced for administration of the estate of a person who is or may be a parent under this chapter.

(c) A donor shall not be a parent of a child conceived through assisted reproduction based on the donor’s genetic connection to such child. A donor shall not be entitled to establish the donor's parentage by signing an acknowledgment pursuant to this chapter. A donor shall not be entitled to notice in a proceeding under this chapter.

(d) A person who consents to assisted reproduction with the intent to be a parent of the child conceived by said assisted reproduction shall be a parent of the child. Consent to assisted reproduction may be established by: (i) a record signed by the person giving birth to a child conceived by assisted reproduction and by an intended parent before, on or after the birth of the child; or (ii) a finding by the court, by a preponderance of the evidence, that: (A) prior to conception or birth of the child, the parties agreed that they would be parents of the child; or (B) the person who seeks to be a parent of the child, together with the person giving birth, voluntarily participated in and consented to the assisted reproduction that resulted in the conception of the child.

(e)(1) Except as provided in paragraph (2), a person who, at the time of a child’s birth, is the spouse of the person who gave birth to the child by assisted reproduction may not challenge their own parentage of the child unless, not later than 2 years after the birth of the child, they commence a proceeding to adjudicate their own parentage of the child and the court finds that they did not consent to the assisted reproduction before, on, or after the birth of the child or withdrew consent pursuant to subsection (g).

(2) A proceeding to adjudicate a spouse’s parentage of a child born by assisted reproduction may be commenced at any time if the court determines that the spouse who is challenging the parentage: (i) neither provided a gamete for, nor consented to, the assisted reproduction; (ii) has not cohabitated with the person who gave birth to the child since the probable time of assisted reproduction; or and (iii) never openly held out the child as their child. This subsection shall apply to a spouse’s challenge of parentage even if the spouse’s marriage is declared invalid after assisted reproduction occurs.

(f) A person who consents to assisted reproduction pursuant to subsection (d) may withdraw consent any time before a transfer or implantation of gametes or embryos that results in a pregnancy by giving notice in writing of their withdrawal of consent to the person who agreed to give birth to a child conceived by assisted reproduction and to any clinic or healthcare provider facilitating the assisted reproduction; provided, however, that failure to give notice to a clinic or healthcare provider shall not affect a determination of parentage pursuant to this section. A person who withdraws consent in compliance with this subsection shall not be a parent of the child under this section.

(g)(1) If a person who intends to be a parent of a child conceived by assisted reproduction dies during the period between the transfer or implantation of a gamete or embryo and the birth of the child, said person’s death shall not preclude the establishment of their parentage of the child if said person would be a parent of the child under this section but for the death.

(2) If a person who consented in writing to assisted reproduction by a person who agreed to give birth to a child dies before a transfer or implantation of gametes or embryos, the deceased person shall be a parent of a child conceived by the assisted reproduction if: (i) (A) the person consented in writing that if assisted reproduction were to occur after their death, they would be a parent of the child; or (B) the person’s intent to be a parent of a child conceived by assisted reproduction after their death is established by a preponderance of the evidence; and (ii) (A) the embryo is in utero not later than 36 months after the person’s death; or (B) the child is born not later than 45 months after the person’s death.

(h) If, due to a clinical or laboratory error, a child conceived by assisted reproduction is not genetically related to any intended parent or any donor who donated to the intended parent or parents, the intended parent or parents shall be the parent or parents of the child unless otherwise determined by the court.

(i) Genetic testing, including genetic marker testing pursuant to section 11, shall not be used to: (i) challenge the parentage of a person who is a parent pursuant to this section; or (ii) establish the parentage of a person who is a donor.

(j) (1)A person giving birth or a person who is or claims to be a parent pursuant to this section may commence a proceeding prior to or after the birth of a child by assisted reproduction to obtain a judgment: (i) declaring that the intended parent or parents are the parent or parents of the resulting child immediately upon the birth of the child and ordering that parental rights and responsibilities vest exclusively in the intended parent or parents immediately upon birth of the child; and (ii) designating the contents of the birth certificate and directing the department of public health to designate the intended parent or parents as the parent or parents of the resulting child.

(2) A judgment issued by a court pursuant to this subsection before the birth of the resulting child by assisted reproduction shall not take effect until the birth of the resulting child. Nothing in this subsection shall be construed to limit said court’s authority to issue orders under any other provision of the General Laws.

(3) The commonwealth, the department of public health and the hospital where the child is or is expected to be born shall not be necessary parties to a proceeding under this section.

(4) The burden of proof in proceedings pursuant to this section shall be by a preponderance of the evidence. 

(k) At the request of a party to a proceeding pursuant to this section, the court shall close the proceeding to the general public.

(l) The court shall issue a final judgment adjudicating whether a person alleged or claiming to be a parent is the parent of a child in a proceeding pursuant to this section. At the request of a party, and subject to other applicable laws, the court in a proceeding pursuant to this section may order the legal name of the child to be changed. If the final judgment of the court is at variance with the child’s birth certificate, the court shall order the department of public health to issue an amended birth certificate that conforms with the final judgment.

(m) Custody, parenting time, visitation and child support for a nonmarital child shall be determined in accordance with applicable laws, rules, regulations, orders and guidelines.

(n) A spouse who has commenced an action for divorce, or a spouse who has been served with a complaint for divorce, may begin assisted reproduction pursuant to this section; provided, however, that the spouse that does not begin assisted reproduction pursuant to this section shall not be a parent of any child born as a result of the assisted reproduction unless both parties consent in writing to be parents of the child after commencement of the divorce action. A spouse who proceeds with assisted reproduction pursuant to this section shall not utilize gametes of their spouse unless their spouse consents in writing to the use of their gametes for assisted reproduction by the spouse after commencement of a divorce action.

Section 28. (a) Sections 28 to 28P, inclusive, shall apply to nonmarital and marital children. This section shall not apply to the birth of a child conceived by sexual intercourse or assisted reproduction under section 27.

(b) Venue for proceedings under sections 28 to 28P, inclusive, shall be in the county in which: (i) the child resides, is born or pursuant to a surrogacy agreement is expected to be born; (ii) a parent or intended parent of the child resides; (iii) a person acting as a surrogate resides; or (iv) a proceeding has been commenced for administration of the estate of a person who is or may be a parent under this chapter.

Section 28A. (a) To execute a surrogacy agreement to act as a surrogate, a person shall: (i) be not less than 21 years of age; (ii) have previously given birth to at least 1 child; (iii) complete a medical evaluation by a licensed physician related to surrogacy; and (iv) complete a mental health consultation by a licensed mental health professional that is independent of the health care providers or facility undertaking any assisted reproduction procedure contemplated by the surrogacy agreement.

(b) To execute a surrogacy agreement as an intended parent, whether or not genetically related to the child, a person shall: (i) be not less than 21 years of age; and (ii) complete a mental health consultation by a licensed mental health professional that is independent of the health care providers or facility undertaking any assisted reproduction procedure contemplated by the surrogacy agreement.

Section 28B. A surrogacy agreement shall be enforceable if:

(i) the prospective surrogate, their spouse, if any, and each intended parent are parties to the agreement;

(ii) the prospective surrogate and each intended parent meet the eligibility requirements of section 28A;

(iii) at least 1 party is a resident of the commonwealth or, if no party is a resident of the commonwealth, at least 1 medical evaluation, medical procedure or mental health consultation under the agreement occurs in the commonwealth;

(iv) the agreement is in writing and signed by all parties;

(v) the agreement is executed prior to a medical procedure attempting to cause a pregnancy in the prospective surrogate, other than the medical evaluation and mental health consultation required by section 28A, and, in every instance, before transfer of embryos or gametes;

(vi) the signature of each party to the agreement is attested by a notary;

(vii) each party to the agreement signs a written acknowledgment of having received a copy of the agreement;

(viii) the prospective surrogate, the surrogate’s spouse, if any, and each intended parent have independent legal representation regarding the terms and potential legal consequences of the surrogacy agreement, paid for by the intended parent or parents, and each legal representative shall be identified in the surrogacy agreement; provided, however, that a single attorney for the prospective surrogate and their spouse and a single attorney for the intended parents shall be sufficient to meet this requirement; and

(ix) records related to the medical evaluation and mental health consultations conducted pursuant to section 28A shall be made available to the surrogate, the surrogate’s spouse, if any, and each intended parent; provided, however, that all such records shall remain otherwise confidential absent a court order.

Section 28C. (a) For a surrogacy agreement to be enforceable, the agreement shall provide that:

(i) the surrogate: (A) shall undergo assisted reproduction and attempt to carry and give birth to any resulting child; (B) except as otherwise provided in sections 28I, 28M and 28N, shall have no claim to parentage of any resulting child; and (C) acknowledges the exclusive parentage of the intended parent or parents of all resulting children;

(ii) if the surrogate is married, their spouse: (A) acknowledges and agrees to abide by all obligations imposed on the surrogate by the terms of the surrogacy agreement; (B) except as otherwise provided in sections 28I, 28M and 28N, shall have no claim to parentage of any resulting child; and (C) acknowledges the exclusive parentage of the intended parent or parents of all resulting children; and

(iii) the intended parent or, if there are more than 1 intended parents, each parent jointly and severally: (A) except as otherwise provided in sections 28G, 28J, 28M and 28N, agree to be the exclusive parent or parents and accept parental rights and responsibilities of all resulting children regardless of the number of children born or the gender or condition of each child; and (B) except as otherwise provided in sections 28G, 28J, 28M and 28N, agree to assume responsibility for the financial support of all resulting children immediately upon the birth of the children regardless of the number of children born or the gender or condition of each child. 

(b) The intended parent or parents shall pay for all surrogacy-related expenses of the surrogate, including expenses for healthcare provided for assisted reproduction, prenatal care, labor and delivery and the medical expenses of all resulting children, that are not covered by insurance; provided, however, that this subsection shall not be construed to supplant any health insurance coverage that is otherwise available to the surrogate or an intended parent for the coverage of healthcare costs; provided further, that this subsection shall not change the health insurance coverage of the surrogate or the responsibility of the insurance company to pay benefits under a policy that covers a surrogate.

(c) The surrogacy agreement shall not infringe on the rights of the surrogate to make all health decisions regarding the surrogate, the surrogate’s body and the surrogate’s pregnancy throughout the duration of the surrogacy agreement, including during attempts to become pregnant, pregnancy, labor and delivery and post-partum. The surrogacy agreement shall not infringe upon the right of the surrogate to autonomy in medical decision making, including, but not limited to, whether to consent to a caesarean section and whether to undergo multiple embryo transfers. Except as otherwise provided by law, any written or oral agreement purporting to waive or limit these rights shall be void as against public policy.             

(d) The surrogacy agreement shall include information about the right of each party to terminate the surrogacy agreement.

(e) Rights created under a surrogacy agreement shall not be assignable and there shall be no third-party beneficiary to a surrogacy agreement other than the resulting child of the surrogacy.

(f) A surrogacy agreement may provide for: (i) payment of consideration and reasonable expenses; and (ii) reimbursement of specific expenses if the agreement is terminated pursuant to this chapter.

Section 28D. Unless a surrogacy agreement expressly provides otherwise: (i) the validity of a surrogacy agreement shall not be affected by the marriage of the surrogate or of an intended parent after the surrogacy agreement has been signed by all parties and in such instances: (A) the surrogate’s spouse’s or intended parent’s spouse’s consent to the surrogacy agreement shall not be required; and (B) the surrogate’s spouse or intended parent’s spouse shall not be a presumed parent of a child conceived by assisted reproduction under the surrogacy agreement; or (ii) the divorce or marriage annulment of the surrogate or of an intended parent after the surrogacy agreement has been signed by all parties shall not affect the validity of the surrogacy agreement.

Section 28E. After the execution of a surrogacy agreement and before the date of termination of the surrogacy agreement pursuant its terms or 180 days after the birth of a child conceived by assisted reproduction under the surrogacy agreement, whichever occurs earlier, the court conducting a proceeding under sections 28 to 28P, inclusive, shall have exclusive, continuing jurisdiction over all matters arising out of the surrogacy agreement; provided, however, that the court shall not have jurisdiction over a child custody or child support proceeding if jurisdiction is not otherwise authorized.

Section 28F. (a) A party to a gestational surrogacy agreement may terminate the agreement at any time before an embryo transfer or implantation by giving written notice of termination to all other parties. If an embryo transfer or implantation does not result in pregnancy, a party may terminate the agreement at any time before a subsequent embryo transfer or implantation.

(b) Unless a gestational surrogacy agreement provides otherwise, upon termination of the agreement under subsection (a), the parties shall be released from the agreement; provided, however, that the intended parent or parents remain responsible for expenses that are reimbursable under the agreement and incurred by the gestational surrogate through the date of the termination of the agreement.

(c) Except in a case involving fraud, neither a gestational surrogate nor the surrogate’s spouse or former spouse, if any, shall be liable to the intended parent or parents for punitive or liquidated damages for terminating a gestational surrogacy agreement in compliance with this section.

Section 28G. (a) Except as otherwise provided in subsection (c), or sections 28H or 28J, upon the birth of a child conceived by assisted reproduction under a gestational surrogacy agreement, each intended parent shall be, by operation of law, a parent of the child. Parental rights shall vest exclusively in the intended parent or parents immediately upon birth of the resulting child.

(b) Except as otherwise provided in subsection (c) or section 28J, a person acting as gestational surrogate or such person’s spouse or former spouse, if any, shall not be, by operation of law, a parent of the child.

(c) If a child is alleged to be a genetic child of the gestational surrogate, the court shall, upon finding sufficient evidence, order genetic testing of the child. If the child is a genetic child of the gestational surrogate, parentage shall be determined in accordance with sections 1 to 27, inclusive.

(d) Except as otherwise provided in subsection (c),section 28H or section 28I, if, due to a clinical or laboratory error, a child conceived by assisted reproduction under a gestational surrogacy agreement is not genetically related to an intended parent or a donor who donated to the intended parent or parents, each intended parent shall be a parent of the child and the person acting as gestational surrogate and their spouse or former spouse, if any, shall not be a parent of the child.

(e) This section shall apply to an intended parent, including an intended parent who dies during the period between the transfer or implantation of a gamete or embryo and the birth of the child.

Section 28H. Except as otherwise provided in section 28J, an intended parent shall not be a parent of a child conceived by assisted reproduction under a gestational surrogacy agreement if the intended parent dies before the transfer or implantation of a gamete or embryo unless: (i) the surrogacy agreement provides otherwise; and (ii) the transfer of a gamete or embryo occurs not later than 36 months after the death of the intended parent or birth of the child occurs not later than 45 months after the death of the intended parent.

Section 28I. (a) Except as otherwise provided in subsection (c) of section 28G or section 28J, before, on or after the birth of a child conceived by assisted reproduction under a gestational surrogacy agreement, any party to the agreement may commence a proceeding for a judgment of parentage:

(i) declaring that each intended parent is a parent of the child and ordering that parental rights and duties vest immediately upon the birth of the child exclusively in each intended parent;

(ii) declaring that the gestational surrogate and the surrogate’s spouse or former spouse, if any, are not the parents of the child;

(iii) designating the content of the birth record in accordance with chapter 46 and directing the department of public health to designate each intended parent as a parent of the child;

(iv) to protect the privacy of the child and the parties, declaring that the court record and related pleadings be impounded in accordance with this section;

(v) if necessary, ordering that the child be surrendered to the intended parent or parents;

(vi) if necessary, ordering that the hospital where the child will be or has been born, treat the intended parent or parents as the sole legal parent or parents for the purpose of naming and medical decisions; and

(vii) for other relief the court determines necessary and proper.

(b) The court may issue an order or judgment under subsection (a) before or after the birth of the child, as requested by the parties.

(c) The commonwealth, the department of public health, the town or city clerk and the hospital where the child is born or is intended to be born shall not be necessary parties to a proceeding under subsection (a). Any party to the surrogacy agreement not joining in the action shall be provided with notice of the proceeding.

(d) A complaint filed pursuant to this section shall include: (i) a copy of the executed surrogacy agreement; (ii) a sworn affidavit of the assisted reproductive physician confirming that the child was conceived pursuant to assisted reproduction; and (iii) certifications from the attorneys representing the intended parent or parents and the gestational surrogate that the requirements of sections 28A, 28B and 28C have been met. A complaint supported by such affidavit and certifications shall be sufficient to establish parentage and a hearing shall not be required unless the court requires additional information which cannot reasonably be ascertained without a hearing.

(e) Upon a finding by a preponderance of the evidence that the complaint satisfies subsection (d), a court shall expeditiously, but not later than 60 days from the docketing of the complaint, issue a judgment of parentage. Parentage judgments issued under this section shall conclusively establish or affirm, where applicable, the parent-child relationship for all purposes. Custody, parenting time, visitation and child support for a nonmarital child shall be determined in accordance with applicable laws, rules, regulations, orders and guidelines.

(f) In the event the certification required by subsection (d) cannot be made because of a technical or nonmaterial deviation from the requirements of sections 28A, 28B and 28C, the court with competent jurisdiction may enforce the agreement and issue a judgment of parentage if the court determines the agreement is in substantial compliance with the requirements of said sections.

(g) At the request of a party, the court of competent jurisdiction shall close a proceeding under this section to the general public. All complaints, pleadings, papers or documents filed pursuant to this section, and docket entries, shall not be available for inspection unless the court where such records are kept, for good cause shown, otherwise orders or unless requested by the child or the parties. All such complaints, pleadings, papers or documents shall be segregated.

Section 28J. (a) A gestational surrogacy agreement that substantially complies with sections 28A, 28B and 28C shall be enforceable.

(b) If a child was conceived by assisted reproduction under a gestational surrogacy agreement that does not substantially comply with sections 28A, 28B and 28C, the court shall determine the rights and duties of the parties to the agreement consistent with the intent of the parties at the time of execution of the agreement. Each party to the agreement and any person who at the time of the execution of the agreement was a spouse of a party to the agreement shall have standing to commence a proceeding to adjudicate an issue related to the enforcement of the agreement.

(c) Except as expressly provided in a gestational surrogacy agreement or subsection (d) or (e), if the agreement is breached by the gestational surrogate or 1 or more intended parents, the non-breaching party shall be entitled to the remedies available at law or in equity.

(d) Specific performance shall not be an available remedy for breach by a gestational surrogate of a provision in an agreement that the gestational surrogate become pregnant, terminate or not terminate a pregnancy or submit to medical procedures.

(e) Except as otherwise provided in subsection (d), if an intended parent is determined to be a parent of the child pursuant to this chapter, specific performance shall be a remedy available for: (i) breach of the agreement by a gestational surrogate which prevents the intended parent from exercising, immediately on birth of the child, the full rights of parentage; or (ii) breach by the intended parent which prevents the intended parent’s acceptance, immediately on birth of the child conceived by assisted reproduction under the agreement, of the duties of parentage.

Section 28K. (a) Except as otherwise provided in section 28N, a genetic surrogacy agreement shall be validated by a probate and family court. A proceeding to validate the agreement shall be commenced before assisted reproduction related to the surrogacy agreement. A complaint filed pursuant to this section shall include: (i) a copy of the executed surrogacy agreement; and (ii) certifications from the legal representatives of the intended parent or parents and the genetic surrogate that the requirements of sections 28A, 28B and 28C have been met.

(b) The court shall issue an order validating a genetic surrogacy agreement, within 60 days of the commencement of such a proceeding, if the court finds by a preponderance of the evidence that: (i) sections 28A, 28B and 28C are satisfied; and (ii) all parties entered into the agreement voluntarily and understand its terms.

(c) A person who terminates a genetic surrogacy agreement under section 28L shall file notice of the termination with the court and parties. On receipt of the notice, the court shall vacate any order issued under subsection (b).

Section 28L. (a) An intended parent or genetic surrogate who is a party to the surrogacy agreement may terminate the agreement at any time before a gamete or embryo transfer or implantation by giving notice of termination in writing to all other parties. If a gamete or embryo transfer or implantation does not result in a pregnancy, a party may terminate the agreement at any time before a subsequent gamete or embryo transfer or implantation. The party’s signature on a notice of termination shall be attested by a notary.

(b) An intended parent or genetic surrogate who terminates the agreement after the court issues an order validating the agreement under sections 28K or 28N, but before the genetic surrogate becomes pregnant by means of assisted reproduction, shall file notice of the termination with the court.

(c) A person shall not terminate a validated genetic surrogacy agreement if a gamete or embryo transfer or implantation has resulted in a pregnancy.

(d) Upon the proper termination or completion of a genetic surrogacy agreement, the parties shall be released from all obligations under the agreement except that any intended parent or parents shall remain responsible for all expenses incurred by the genetic surrogate through the date of the completion which are reimbursable under the agreement. Unless the agreement provides otherwise, the genetic surrogate is not entitled to any non-expense related compensation paid for acting as a surrogate.

(e) Except in a case involving fraud, neither a genetic surrogate nor their spouse or former spouse, if any, shall be liable to the intended parent or parents for punitive or liquidated damages, for terminating a genetic surrogacy agreement in compliance with this section.

Section 28M. (a) Upon the birth of a child conceived by assisted reproduction under a genetic surrogacy agreement validated pursuant to section 28K or 28N, each intended parent shall be a parent of the resulting child.

(b) Upon the birth of a child conceived by assisted reproduction under a genetic surrogacy agreement validated under section 28K or 28N, the intended parent or parents shall file a notice with the court that validated said agreement that a child has been born as a result of assisted reproduction under that agreement. Upon receiving such notice, the court shall immediately, or as soon as practicable, issue an order without notice and hearing:

(i) declaring that any intended parent or parents is a parent of a child conceived by assisted reproduction under the agreement and ordering that parental rights and duties vest exclusively in any intended parent;

(ii) declaring that the genetic surrogate and their spouse or former spouse, if any, are not parents of the child;

(iii) designating the contents of the birth certificate in accordance with chapter 46 and directing the department of public health to designate any intended parent as a parent of the child;

(iv) to protect the privacy of the child and the parties, declaring that the court record and related pleadings be impounded in accordance with section 28I;

(v) if necessary, ordering that the child be surrendered to the intended parent or parents; and

(vi) for other relief the court determines necessary and proper.

(c) Except as otherwise provided in subsection (d) or section 28O, if, due to a clinical or laboratory error, a child conceived by assisted reproduction under a genetic surrogacy agreement is not genetically related to an intended parent or a donor who donated to the intended parent or parents, each intended parent and not the genetic surrogate and their spouse or former spouse, if any, shall be a parent of the child.

(d) If a child born to a genetic surrogate is alleged not to have been conceived by assisted reproduction, the court may, upon finding sufficient evidence, order genetic testing to determine the genetic parentage of the child. If the child was not conceived by assisted reproduction and the second source of genetic material is the spouse of the genetic surrogate, then the surrogate and the spouse shall be found to be the parents of the child. If the second genetic source is a person other than the spouse of the surrogate, then parentage shall be determined as provided in sections 1 to 27, inclusive; provided, however, that if the second genetic source is an intended parent, the court, in its sole discretion, shall determine parentage under sections 1 to 27, inclusive. Unless the genetic surrogacy agreement provides otherwise, the genetic surrogate shall not be entitled to any non-expense related compensation paid for acting as a surrogate if the child was not conceived by assisted reproduction.

(e) If an intended parent fails to file the notice required under subsection (b), the person acting as genetic surrogate may file with the court, not later than 60 days after the birth of a child conceived by assisted reproduction under the genetic surrogacy agreement, notice that the child has been born to the genetic surrogate. On proof of a court order issued under sections 28K or 28N validating the agreement, the court shall order that each intended parent is a parent of the child.

Section 28N. (a) A genetic surrogacy agreement, whether or not in writing, that is not validated under section 28K shall be enforceable only to the extent provided in this section and section 28P.

(b) If all parties agree, a court may validate a genetic surrogacy agreement after assisted reproduction has occurred and before the birth of a child conceived by assisted reproduction under the agreement if the court finds by a preponderance of the evidence that: (i) sections 28A, 28B or 28C are satisfied; and (ii) all parties entered into the agreement voluntarily and understand its terms.

(c) If a child conceived by assisted reproduction under a genetic surrogacy agreement that is not validated under section 28K or subsection (b) is born, the genetic surrogate shall not automatically be a parent and the court shall adjudicate parentage of the child based on the best interest of the child, taking into account the factors in subsection (a) of section 26 and the intent of the parties at the time of the execution of the agreement.

(d) The parties to a genetic surrogacy agreement shall have standing to commence a proceeding to adjudicate parentage under this section.

Section 28O. (a) Except as otherwise provided in sections 28M or 28N, upon the birth of a child conceived by assisted reproduction under a genetic surrogacy agreement, each intended parent shall be, by operation of law, a parent of the child, notwithstanding the death of an intended parent during the period between the transfer of a gamete or embryo and the birth of the child.

(b) Except as otherwise provided in sections 28M or 28N, an intended parent shall not be a parent of a child conceived by assisted reproduction under a genetic surrogacy agreement if the intended parent dies before the transfer of a gamete or embryo unless: (i) the agreement provides otherwise; and (ii) the transfer of the gamete or embryo occurs not later than 36 months after the death of the intended parent, or birth of the child occurs not later than 45 months after the death of the intended parent.

Section 28P. (a) Subject to subsection (d) of section 28L, if a genetic surrogacy agreement is breached by a genetic surrogate or 1 or more intended parents, the non-breaching party is entitled to the remedies available at law or in equity.

(b) Specific performance shall not be an available remedy for breach by a genetic surrogate of a requirement of a validated or nonvalidated genetic surrogacy agreement that the genetic surrogate become pregnant, terminate or not terminate a pregnancy or submit to medical procedures.

(c) Except as otherwise provided in subsection (b), specific performance shall be a remedy available for: (i) breach of a validated genetic surrogacy agreement by a genetic surrogate of a requirement which prevents an intended parent from exercising, immediately upon birth of the child, the full rights of parentage; or (ii) breach by an intended parent which prevents the intended parent’s acceptance, immediately upon birth of the child, of the duties of parentage.

SECTION 66. The trial court of the commonwealth, in accordance with section 24 of chapter 209C of the General Laws, shall update existing forms and promulgate new forms as necessary for use under said chapter 209C, which shall be in such form and language to permit a person to prepare and file such forms pro se.

SECTION 67. This act shall take effect on January 1, 2025.