Traditional and gestational surrogacy arrangements regulated, and crime of operating a for-profit surrogacy agency created.

A bill for an act

relating to children; regulating traditional and gestational surrogacy arrangements;

creating a crime to operate a for-profit surrogacy agency; proposing coding for

new law in Minnesota Statutes, chapter 257.

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

Section 1.

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[257.90] DEFINITIONS.

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Subdivision 1.

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Scope.

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The definitions in this section apply to sections 257.90 to 257.98.

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Subd. 2.

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Donor.

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"Donor" means an individual who is not an intended parent who

contributes a gamete or gametes for the purpose of in vitro fertilization or implantation in

another.

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Subd. 3.

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Embryo.

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"Embryo" means a fertilized egg prior to 14 days of development.

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Subd. 4.

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Embryo transfer.

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"Embryo transfer" means all medical and laboratory

procedures that are necessary to effectuate the transfer of an embryo into the uterine cavity.

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Subd. 5.

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Gamete.

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"Gamete" means a sperm or an egg.

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Subd. 6.

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Gestational surrogacy arrangement.

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"Gestational surrogacy arrangement"

means the process by which a woman who is not the intended parent attempts to carry and

give birth to a child created through in vitro fertilization using one or more gametes provided

by the intended parents.

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Subd. 7.

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Gestational surrogacy contract.

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"Gestational surrogacy contract" means a

written agreement regarding a gestational surrogacy arrangement.

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Subd. 8.

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Gestational surrogate.

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"Gestational surrogate" means a woman who

participates in a gestational surrogacy arrangement as the woman who carries the child to

term and gives birth to the child that is the subject of the surrogacy arrangement.

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Subd. 9.

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Intended parents.

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"Intended parents" means a married couple, at least one of

whom contributes his or her own gamete to create the embryo implanted in the gestational

surrogate, who enters into an enforceable gestational surrogacy contract as defined in

subdivision 7, under which the married couple consents to be the legal parents of the child

or children resulting from in vitro fertilization.

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Subd. 10.

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In vitro fertilization.

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"In vitro fertilization" means medical and laboratory

procedures that are necessary to effectuate the extracorporeal fertilization of egg and sperm.

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Subd. 11.

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Medical evaluation.

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"Medical evaluation" means an evaluation by and in

consultation with a physician conducted according to the recommended guidelines published

and in effect at the time of the evaluation by the American Society for Reproductive Medicine

and the American College of Obstetricians and Gynecologists.

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Subd. 12.

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Mental health evaluation.

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"Mental health evaluation" means an evaluation

by and consultation with a mental health professional, as defined in section 245.462,

subdivision 18, conducted according to the recommended guidelines published and in effect

at the time of the evaluation by the American Society for Reproductive Medicine and the

American College of Obstetricians and Gynecologists.

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Subd. 13.

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Physician.

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"Physician" means a person currently licensed in good standing

as a physician under chapter 147.

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Subd. 14.

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Surrogacy agent.

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"Surrogacy agent" means any person or entity who provides

the service of bringing together intended parents and potential gestational surrogates to

create gestational surrogacy arrangements. The term "surrogacy agent" does not include

licensed attorneys whose services are limited to the representation of the parties during the

creation and performance of the gestational surrogacy contract.

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Subd. 15.

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Traditional surrogacy arrangement.

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"Traditional surrogacy arrangement"

means the process by which a woman attempts to carry and give birth to a child using her

own gametes and either the gametes of a person who intends to parent the child, or donor

gametes, when there is an agreement to relinquish the custody of and all rights and obligations

to the child upon the child's birth.

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Sec. 2.

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[257.91] TRADITIONAL SURROGACY.

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Traditional surrogacy arrangements and contracts related to traditional surrogacy

arrangements are invalid and parentage and custody must remain with the woman who gave

birth to the child or children, regardless of any surrogacy arrangement, until she chooses to

terminate her parental rights.

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Sec. 3.

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[257.92] GESTATIONAL SURROGACY.

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(a) A gestational surrogacy contract consistent with the requirements of this section is

enforceable. When a surrogacy contract cannot be enforced pursuant to the requirements

under the law, the court must apply chapter 257E and other relevant statutes to determine

parentage.

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(b) A gestational surrogacy contract is not valid unless:

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(1) the gestational surrogate and the intended parents are represented by separate legal

counsel in all matters concerning the gestational surrogacy arrangement and the gestational

surrogacy contract; and

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(2) the gestational surrogate and the intended parents have signed a written

acknowledgment of their receipt of information about the legal, financial, and contractual

rights, expectations, penalties, and obligations of the surrogacy agreement.

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(c) A gestational surrogacy contract must be:

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(1) in writing;

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(2) executed prior to the commencement of any medical procedures intended to initiate

a pregnancy in furtherance of the gestational surrogacy arrangement, other than medical or

mental health evaluations necessary to determine eligibility of the parties under section

257.94;

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(3) signed by both intended parents, the gestational surrogate, and the gestational

surrogate's spouse, if any; and

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(4) notarized or witnessed by two disinterested competent adults.

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(d) A gestational surrogacy contract must include:

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(1) the express written agreement of the intended parents to accept custody of the resulting

child or children upon the child's or children's birth regardless of number, sex, or mental or

physical condition, and to assume sole responsibility for the support of the child or children

upon the birth of the child or children;

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(2) estate planning documents executed by the intended parents providing for care and

custody of the child or children in the event the intended parents predecease the child or

children;

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(3) information disclosing how each intended parent will cover the expenses of the

surrogate and the medical expenses of the child, and if health care coverage is used to cover

the medical expenses, the disclosure must include a summary of the health care policy

provisions related to coverage for surrogate pregnancy, including any possible liability of

the surrogate, third-party liability liens, other insurance coverage, and any notice requirement

that could affect coverage or liability of the surrogate;

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(4) a requirement that the embryo transfer be a single-embryo transfer;

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(5) the express written agreement of the gestational surrogate to undergo embryo transfer,

attempt to carry and give birth to the child, and surrender custody of all resulting children

to the intended parents upon the birth of the child or children;

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(6) if the gestational surrogate is married, the express agreement of the gestational

surrogate's spouse to support, facilitate, and be jointly bound by the obligations imposed

on the gestational surrogate pursuant to the terms of the gestational surrogacy contract and

to surrender custody of all resulting children to the intended parents upon the birth of the

resulting child or children, except as provided in paragraph (g);

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(7) the right of the gestational surrogate to choose her own physician;

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(8) a requirement that the gestational surrogate be provided a list of potential risks and

side effects for hormone treatment and pregnancy with a nongenetically related child; and

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(9) that a right created under a surrogacy agreement is not assignable and there is no

third-party beneficiary of the agreement other than the child.

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(e) A gestational surrogacy contract is enforceable in Minnesota even though it contains

one of the following provisions:

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(1) the gestational surrogate's agreement to undergo all medical examinations, treatments,

and fetal monitoring that her physician recommends for the success of the pregnancy;

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(2) the gestational surrogate's agreement to abstain from any activities that her physician

reasonably believes to be harmful to the pregnancy and future health of the child, including

but not limited to smoking, drinking alcohol, using drugs not prescribed or illegal drugs,

using prescription drugs not authorized by a physician aware of the gestational surrogate's

pregnancy, exposure to radiation, or any other activities prescribed by a licensed physician,

mental health professional, physician assistant, or midwife; and

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(3) the agreement of the intended parents to pay for or reimburse the gestational surrogate

for reasonable expenses incurred related to the gestational surrogacy arrangement and the

gestational surrogacy contract.

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(f) Gestational surrogacy contracts that include the following terms are invalid and

unenforceable, and the gestational surrogate is not liable for damage:

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(1) limits on the gestational surrogate's ability to make medical decisions during the

pregnancy;

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(2) a requirement that the gestational surrogate consent to the termination of a pregnancy

or selective reduction of a fetus or fetuses during pregnancy;

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(3) a limit on the recovery of expenses for the gestational surrogate based on the live

birth, or terms that prevent a gestational surrogate from recovering costs when a pregnancy

is not successful; or

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(4) terms that provide for compensation of the gestational surrogate beyond actual

medical expenses.

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(g) For the purposes of this section, "compensation" means payment of money, objects,

services, or anything else with monetary value in exchange for participating in the gestational

surrogacy arrangement. Compensation must not include reimbursement of actual expenses

incurred by the gestational surrogate related to the gestational surrogacy arrangement,

including medical insurance, life insurance, cost of medical care, legal expenses, travel

expenses, cost of clothing, and payment provided to the gestational surrogate or her family

in the event of the gestational surrogate's death or permanent disability.

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(h) If the gestational surrogate marries after the gestational surrogacy contract has been

signed, there is no effect on an existing gestational surrogate contract, the gestational

surrogate's spouse's consent to the contract is not required, and the gestational surrogate's

spouse is not a presumed parent of the resulting child.

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(i) Any party to the gestational surrogacy contract may invalidate the contract at any

time prior to implantation of the embryo for any reason or no reason and is not liable for

damages. Except in cases involving fraud, neither a gestational surrogate nor the surrogate's

spouse or former spouse, if any, is liable to the intended parent or parents for a penalty or

liquidated damages, for terminating a gestational surrogacy agreement under this section.

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EFFECTIVE DATE.

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This section is effective August 1, 2025, and applies to all

gestational surrogacy contracts entered into on or after that date.

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Sec. 4.

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[257.93] ELIGIBILITY.

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Subdivision 1.

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Surrogate.

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A woman is eligible to serve as a gestational surrogate if, at

the time the gestational surrogacy contract is executed, the woman:

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(1) is a United States citizen residing in the United States or a legal resident;

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(2) is at least 21 years of age;

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(3) has given birth to a live child prior to the surrogacy arrangement;

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(4) has completed a medical evaluation relating to the anticipated pregnancy and provides

a written statement from the examining physician that states that it is reasonably likely that

she can successfully carry a pregnancy to full term without any complications that would

threaten the health of the gestational surrogate or resulting child;

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(5) is represented by independent legal counsel hired by the surrogate regarding the

terms of the gestational surrogacy contract and the potential legal consequences of the

gestational surrogacy contract;

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(6) has completed a mental health evaluation relating to the anticipated gestational

surrogacy arrangement and provided a written summary by the examining psychological

professional to the intended parents;

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(7) has completed a criminal background check and provided the results to the intended

parents;

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(8) is financially secure, meaning the gestational surrogate's household, excluding a

homestead mortgage and automobile loan payments, has less than $10,000 of debt at the

time of the creation of the gestational surrogacy contract;

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(9) is not on any form of public assistance; and

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(10) has obtained, or obtains prior to the embryo transfer, a health insurance policy that

covers major medical treatments and hospitalization and extends throughout the duration

of the expected pregnancy and for eight weeks after the birth of the child; the policy may

be procured by the intended parents on behalf of the gestational surrogate pursuant to the

gestational surrogate contract or the intended parents may self-insure by depositing sufficient

funds into escrow to pay for all reasonably expected medical expenses prior to the date of

the first embryo transfer.

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Subd. 2.

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Intended parent of a child born via surrogacy.

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To be eligible to participate

in a gestational surrogacy arrangement and execute a gestational surrogacy contract, the

intended parents must:

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(1) be United States citizens residing in the United States or legal residents;

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(2) be at least 21 years of age;

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(3) have been married at least two years prior to the execution of the gestational surrogacy

contract;

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(4) require the services of the gestational surrogate to have a child as evidenced by a

qualified physician's affidavit attached to the gestational surrogacy contract that the intended

parents are unable to conceive or carry a child to term;

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(5) have provided a gamete for the child from at least one of the intended parents;

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(6) have completed a mental health evaluation relating to the anticipated gestational

surrogacy arrangement and provided a written summary by the examining psychological

professional to the gestational surrogate;

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(7) be represented by independent legal counsel regarding the terms of the gestational

surrogacy contract and the potential legal consequences of the gestational surrogacy contract;

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(8) have completed a criminal background check and provided the results to the

gestational surrogate; and

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(9) have an estate planning document prior to the embryo transfer providing for custody

and care of the child in the event the intended parents predecease the child.

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Sec. 5.

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[257.94] RIGHTS OF PARENTAGE.

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(a) When a gestational surrogacy arrangement satisfies the requirements of sections

257.92 and 257.93, then:

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(1) the intended parents are the parents of the child born via surrogacy for purposes of

state law upon the birth of the child;

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(2) the child is considered the child of the intended parents for purposes of state law;

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(3) parental rights vest in the intended parents of a child born via surrogacy;

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(4) sole custody, care, and control of the child rests solely with the intended parents

upon the birth of the child; and

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(5) upon the birth of the child, neither the gestational surrogate nor spouse, if any, is the

parent of the child for purposes of state law.

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(b) In gestational surrogacy arrangements in which the gestational surrogacy contract

is invalid and unenforceable, parentage and custody must remain with the woman who gave

birth to the child or children until she chooses to terminate her parental rights.

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EFFECTIVE DATE.

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This section is effective August 1, 2025, and applies to all

gestational surrogacy contracts entered into on or after that date.

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Sec. 6.

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[257.95] PARENTAGE; DUTY TO SUPPORT.

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Subdivision 1.

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Parentage.

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(a) For purposes of the Parentage Act, sections 257.51 to

257.75, the parent-child relationship that arises upon the birth of the child through surrogacy

under section 257.94 is established if, no later than five business days after the birth of a

child born through a gestational surrogacy arrangement, the attorneys representing both the

gestational surrogate and the intended parents provide joint written certification that:

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(1) the parties entered into a valid gestational surrogacy contract under this chapter; and

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(2) the provisions of the gestational surrogacy contract have been satisfactorily performed

by the parties.

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(b) The attorney certifications required by paragraph (a) must be filed on a form

prescribed by the Department of Health, which must include the names of the parties to the

surrogacy arrangement, including the child, as well as demographic data regarding the

intended parents and the gestational surrogate so that (1) the department may conduct studies

of gestational surrogacy arrangements, and (2) the department may release to children born

of surrogacy the identity of the gestational surrogate when the child reaches the age of

maturity. The personal data of the parties is considered private for the purposes of public

records requests. The attorney certifications required by paragraph (a) must establish the

parties' compliance with all of the requirements of sections 257.51 to 257.75 in a manner

consistent with the requirements of sections 257.51 to 257.75, if any.

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(c) The attorney certifications required by paragraph (a) must be completed no later than

five business days after the child's or children's birth. When the attorney certifications

required by paragraph (a) are completed, all hospital and state representatives or employees

must complete the original birth certificate of the child or children to reflect the intended

parents, and only the intended parents, as the child's or children's parents. Health and birth

records related to the surrogacy arrangement, other than the birth certificate, must contain

the identity of the gestational surrogate, and the child or children born from surrogacy must

have access to their original birth record. The court may approve a filing later than five

business days after the birth of the child or children when it is in the best interest of the

child or children.

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Subd. 2.

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Duty to support.

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(a) A person who is considered to be the parent of the child

under this section is obligated to support the child. A breach of the gestational surrogacy

contract by the intended parents does not relieve the intended parents of the support obligation

imposed by section 257.94.

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(b) A gamete donor is not a parent if the donor has waived any and all rights to the

donated gametes and any resultant embryos or children, in a record between the donor and:

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(1) a medical or other storage facility; or

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(2) the intended parents, whether the donor is anonymous or is known to the intended

parents.

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(c) If the requirements of this section are met, a donor is not obligated to pay child

support for a child born from the donor's gamete donation.

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Subd. 3.

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Entry of judgment of parentage.

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(a) A judgment establishing the intended

parents' exclusive legal parentage must be entered by the court administrator within five

business days after issuance of a court order to that effect or after the following conditions

are met:

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(1) the attorneys representing both parties have complied with the certification

requirements in subdivision 1;

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(2) one of the parties has filed with the court a petition to establish parentage; and

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(3) after the birth of the child or children born through the gestational surrogacy

arrangement, the attorneys for the parties file with the court administrator a joint affidavit

of compliance with the certification requirements set forth in subdivision 1.

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(b) A judgment entered and docketed under this subdivision has the same effect and is

subject to the same procedures, defenses, and proceedings as any other judgment in district

court.

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Subd. 4.

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Parentage of deceased intended parent.

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This section applies to an intended

parent even if the intended parent died during the period between the transfer of a gamete

or embryo and the birth of the child. An intended parent is not a parent of a child conceived

by assisted reproduction under a gestational surrogacy agreement if the intended parent dies

before the transfer of a gamete or embryo.

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EFFECTIVE DATE.

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This section is effective August 1, 2025, and applies to all

gestational surrogacy contracts entered into on or after that date.

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Sec. 7.

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[257.96] BREACH; DAMAGES.

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Subdivision 1.

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Breach of surrogacy contract.

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A breach of the surrogacy contract occurs

if the gestational surrogate or the intended parent or parents fails to comply with a provision

of the surrogacy contract or the requirements in sections 257.92 to 257.95.

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Subd. 2.

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Specific performance prohibited.

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If the surrogacy contract is breached, a

court of competent jurisdiction must determine the rights and obligations of the parties to

any gestational surrogacy contract based on the other provisions of the Parentage Act,

sections 257.51 to 257.75, specifically including but not limited to the best interests of the

child. The remedy of specific performance is not available for a breach of a gestational

surrogacy contract by the gestational surrogate.

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Subd. 3.

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Damages.

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Except as expressly provided in the gestational surrogacy contract

or sections 257.92 to 257.95, the intended parents and the gestational surrogate are entitled

to all remedies available at law or equity. Any action arising from a surrogacy contract must

be brought within two years from the date of the birth of the child that was the result of the

surrogacy arrangement.

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Subd. 4.

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Immunity; negligence.

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Except as provided in sections 257.90 to 257.98, no

person is civilly or criminally liable for nonnegligent actions taken pursuant to the

requirements of sections 257.90 to 257.97. This provision does not prevent liability or

actions between or among the parties, including actions brought by or on behalf of the child,

based on negligent, reckless, willful, or intentional acts that result in damages to any party.

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EFFECTIVE DATE.

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This section is effective August 1, 2025, and applies to all

gestational surrogacy contracts entered into on or after that date.

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Sec. 8.

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[257.97] FOR-PROFIT SURROGACY AGENTS PROHIBITED.

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(a) It is unlawful for any individual or unincorporated association to accept compensation

for recruiting or procuring surrogates, or to accept compensation for otherwise arranging

or inducing intended parents and surrogates to enter into surrogacy contracts in this state.

All surrogacy agents operating in Minnesota and formed as corporations must be formed

as nonprofit corporations under chapter 317A. Surrogacy agencies formed as nonprofit

corporations must be licensed by the Department of Human Services. Surrogacy agents

formed as corporations under chapter 317A may receive compensation for facilitating a

gestational surrogacy arrangement.

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(b) A violation of this section is punishable as a felony with a prison sentence of up to

two years and a fine of $25,000.

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(c) Any person who acts as a surrogacy agent in violation of this section is also liable

to all the parties to the gestational surrogacy contract in an amount equal to three times the

amount of compensation to have been paid to the agent pursuant to the contract. One-half

of the damages under this paragraph must be due to (1) the gestational surrogate and (2)

the gestational surrogate's spouse, if any, if the spouse is a party to the contract. One-half

of the damages under this paragraph must be due to the intended parents. An action under

this section must be brought within five years of the date of the contract.

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(d) This section does not apply to the services of an attorney who gives legal advice

relating to a surrogacy contract or prepares a surrogacy contract, provided that the attorney

does not also serve as a surrogacy agent.

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Sec. 9.

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[257.98] GESTATIONAL SURROGACY DATA COLLECTION.

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The Department of Health must collect aggregate data related to surrogacy, as described

in section 257.95. Health care professionals who perform in vitro fertilization and embryo

transfer procedures for gestational surrogacy arrangements must report to the Department

of Health data on the use of gestational surrogacy, including the number of in vitro

procedures, embryo transfers, and live births connected to surrogacy arrangements, as well

as the health of children born via surrogacy arrangements.

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EFFECTIVE DATE.

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This section is effective August 1, 2025, and applies to all

gestational surrogacy contracts entered into on or after that date.

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