The Vermont Statutes Online

Title 15C: Parentage Proceedings

Chapter 008: Parentage by Gestational Carrier Agreement

• § 801. Eligibility to enter gestational carrier agreement

  (a) In order to execute an agreement to act as a gestational carrier, a person shall:

  (1) be at least 21 years of age;

  (2) have completed a medical evaluation that includes a mental health consultation;

  (3) have had independent legal representation of the person’s own choosing and paid for by the intended parent or parents regarding the terms of the gestational carrier agreement and have been advised of the potential legal consequences of the gestational carrier agreement; and

  (4) not have contributed gametes that will ultimately result in an embryo that the gestational carrier will attempt to carry to term, unless the gestational carrier is entering into an agreement with a family member.

  (b) Prior to executing a gestational carrier agreement, a person or persons intending to become a parent or parents, whether genetically related to the child or not, shall:

  (1) be at least 21 years of age;

  (2) have completed a medical evaluation and mental health consultation; and

  (3) have retained independent legal representation regarding the terms of the gestational carrier agreement and have been advised of the potential legal consequences of the gestational carrier agreement. (Added 2017, No. 162 (Adj. Sess.), § 1.)

• § 802. Gestational carrier agreement

  (a) Written agreement. A prospective gestational carrier, that person’s spouse, and the intended parent or parents may enter into a written agreement that:

  (1) the prospective gestational carrier agrees to pregnancy by means of assisted reproduction;

  (2) the prospective gestational carrier and that person’s spouse have no rights and duties as the parents of a child conceived through assisted reproduction; and

  (3) the intended parent or parents will be the parents of any resulting child.

  (b) Enforceability. A gestational carrier agreement is enforceable only if it meets the following requirements:

  (1) The agreement shall be in writing and signed by all parties.

  (2) The agreement shall not require more than a one-year term to achieve pregnancy.

  (3) At least one of the parties shall be a resident of this State.

  (4) The agreement shall be executed before the commencement of any medical procedures other than the medical evaluations required by section 801 of this title and, in every instance, before transfer of embryos.

  (5) The gestational carrier and the intended parent or parents shall meet the eligibility requirements of section 801 of this title.

  (6) If any party is married, the party’s spouse shall be a party to the agreement.

  (7) The gestational carrier and the intended parent or parents shall be represented by independent legal counsel in all matters concerning the agreement and each counsel shall affirmatively so state in a written declaration attached to the agreement. The declarations shall state that the agreement meets the requirements of this title and shall be solely relied upon by health care providers and staff at the time of birth and by the Department of Health for birth registration and certification purposes.

  (8) The parties to the agreement shall sign a written acknowledgment of having received a copy of the agreement.

  (9) The signing of the agreement shall be witnessed and signed by at least one other person.

  (10) The agreement shall expressly provide that the gestational carrier:

  (A) shall undergo assisted reproduction and attempt to carry and give birth to any resulting child;

  (B) has no claim to parentage of all resulting children to the intended parent or parents immediately upon the birth of the child or children regardless of whether a court order has been issued at the time of birth; and

  (C) shall acknowledge the exclusive parentage of the intended parent or parents of all resulting children.

  (11) If the gestational carrier is married, the carrier’s spouse:

  (A) shall acknowledge and agree to abide by the obligations imposed on the gestational carrier by the terms of the gestational carrier agreement;

  (B) has no claim to parentage of any resulting children to the intended parent or parents immediately upon the birth of the children regardless of whether a court order has been issued at the time of birth; and

  (C) shall acknowledge the exclusive parentage of the intended parent or parents of all resulting children.

  (12) The gestational carrier shall have the right to use the services of a health care provider or providers of the gestational carrier’s choosing to provide care during the pregnancy.

  (13) The intended parent or parents shall:

  (A) be the exclusive parent or parents and accept parental rights and responsibilities of all resulting children immediately upon birth regardless of the number, gender, or mental or physical condition of the child or children; and

  (B) assume responsibility for the financial support of all resulting children immediately upon the birth of the children.

  (c) Medical evaluations. If requested by a party or the court, a party shall provide records to the court and other parties related to the medical evaluations conducted pursuant to section 801 of this title.

  (d) Reasonable consideration and expenses. Except as provided in section 809 of this title, a gestational carrier agreement may include provisions for payment of consideration and reasonable expenses to a prospective gestational carrier, provided they are negotiated in good faith between the parties.

  (e) Decision of gestational carrier. A gestational agreement shall permit the gestational carrier to make all health and welfare decisions regarding the gestational carrier’s health and pregnancy, and shall not enlarge or diminish the gestational carrier’s right to terminate the pregnancy. (Added 2017, No. 162 (Adj. Sess.), § 1.)

• § 803. Parentage; parental rights and responsibilities

  (a)(1) If a gestational carrier agreement satisfies the requirements of this chapter, the intended parent or parents are the parent or parents of the resulting child immediately upon the birth of the child, and the resulting child is considered the child of the intended parent or parents immediately upon the birth of the child. Neither the gestational carrier nor the gestational carrier’s spouse, if any, is the parent of the resulting child.

  (2) A person who is determined to be a parent of the resulting child is obligated to support the child. The breach of the gestational carrier agreement by the intended parent or parents does not relieve the intended parent or parents of the obligation to support the resulting child.

  (3) Notwithstanding subdivisions (1) and (2) of this subsection, if genetic testing indicates a genetic relationship between the gestational carrier and the child, parentage shall be determined by the Family Division of the Superior Court pursuant to chapters 1 through 6 of this title.

  (b) Parental rights and responsibilities shall vest exclusively in the intended parent or parents immediately upon the birth of the resulting child.

  (c) If due to a laboratory error, the resulting child is not genetically related to either the intended parent or parents or any donor who donated to the intended parent or parents, the intended parent or parents are considered the parent or parents of the child. (Added 2017, No. 162 (Adj. Sess.), § 1.)

• § 804. Birth and parentage orders

  (a) Before or after the birth of a resulting child, a party to a gestational carrier agreement may commence a proceeding in the Probate Division of the Superior Court to obtain an order and judgment of parentage doing any of the following:

  (1) Declaring that the intended parent or parents are the parent or parents of the resulting child and ordering that parental rights and responsibilities vest exclusively in the intended parent or parents immediately upon the birth of the child.

  (2) Declaring that the gestational carrier or her spouse, if any, are not the parents of the resulting child.

  (3) Designating the contents of the birth certificate and directing the Department of Health to designate the intended parent or parents as the parent or parents of the child. The Department of Health may charge a reasonable fee for the issuance of a birth certificate.

  (4) Sealing the record from the public to protect the privacy of the child and the parties.

  (5) Providing any relief the court determines necessary and proper.

  (b) Neither the State nor the Department of Health is a necessary party to a proceeding under subsection (a) of this section.

  (c) The Probate Division of the Superior Court shall forward a certified copy of the order issued pursuant to this section to the Department of Health and to the intended parents or their representative.

  (d) The intended parent or parents and any resulting child shall have access to their court records at any time. (Added 2017, No. 162 (Adj. Sess.), § 1; amended 2019, No. 24, § 5.)

• § 805. Exclusive, continuing jurisdiction

  Subject to the jurisdictional standards of 15 V.S.A. § 1071, the court conducting a proceeding under this chapter has exclusive, continuing jurisdiction of all matters arising out of the gestational carrier agreement until a child born to the gestational carrier during the period governed by the agreement attains the age of 180 days. (Added 2017, No. 162 (Adj. Sess.), § 1.)

• § 806. Termination of gestational carrier agreement

  (a) A party to a gestational carrier agreement may withdraw consent to any medical procedure and may terminate the gestational carrier agreement at any time prior to any embryo transfer or implantation by giving written notice of termination to all other parties.

  (b) Upon termination of the gestational carrier agreement under subsection (a) of this section, the parties are released from all obligations recited in the agreement except that the intended parent or parents remain responsible for all expenses that are reimbursable under the agreement incurred by the gestational carrier through the date of termination. The gestational carrier is entitled to keep all payments received and obtain all payments to which the gestational carrier is entitled. Neither a prospective gestational carrier nor the gestational carrier’s spouse, if any, is liable to the intended parent or parents for terminating a gestational carrier agreement. (Added 2017, No. 162 (Adj. Sess.), § 1.)

• § 807. Gestational carrier agreement; effect of subsequent change of marital status

  Unless a gestational carrier agreement expressly provides otherwise:

  (1) the marriage of a gestational carrier or of an intended parent after the agreement has been signed by all parties does not affect the validity of the agreement, the gestational carrier’s spouse’s consent or intended parent’s spouse’s consent to the agreement is not required, and the gestational carrier’s spouse or intended parent’s spouse is not a presumed parent of a child conceived by assisted reproduction under the agreement; and

  (2) the divorce, dissolution, annulment, or legal separation of the gestational carrier or of an intended parent after the agreement has been signed by all parties does not affect the validity of the agreement. (Added 2017, No. 162 (Adj. Sess.), § 1.)

• § 808. Effect of noncompliance; standard of review; remedies

  (a) Not enforceable. A gestational carrier agreement that does not meet the requirements of this chapter is not enforceable.

  (b) Standard of review. In the event of noncompliance with the requirements of this chapter or with a gestational carrier agreement, the Family Division of the Superior Court shall determine the respective rights and obligations of the parties to the gestational carrier agreement, including evidence of the intent of the parties at the time of execution.

  (c) Remedies. Except as expressly provided in a gestational carrier agreement and in subsection (d) of this section, in the event of a breach of the gestational carrier agreement by the gestational carrier or the intended parent or parents, the gestational carrier or the intended parent or parents are entitled to all remedies available at law or in equity.

  (d) Genetic testing. If a person alleges that the parentage of a child born to a gestational carrier is not the result of assisted reproduction, and this question is relevant to the determination of parentage, the court may order genetic testing.

  (e) Specific performance. Specific performance is not an available remedy for a breach by the gestational carrier of any term in a gestational carrier agreement that requires the gestational carrier to be impregnated or to terminate a pregnancy. Specific performance is an available remedy for a breach by the gestational carrier of any term that prevents the intended parent or parents from exercising the full rights of parentage immediately upon the birth of the child. (Added 2017, No. 162 (Adj. Sess.), § 1.)

• § 809. Liability for payment of gestational carrier health care costs

  (a) The intended parent or parents are liable for the health care costs of the gestational carrier that are not paid by insurance. As used in this section, “health care costs” means the expenses of all health care provided for assisted reproduction, prenatal care, labor, and delivery.

  (b) A gestational carrier agreement shall explicitly detail how the health care costs of the gestational carrier are paid. The breach of a gestational carrier agreement by a party to the agreement does not relieve the intended parent or parents of the liability for health care costs imposed by subsection (a) of this section.

  (c) This section is not intended to supplant any health insurance coverage that is otherwise available to the gestational carrier or an intended parent for the coverage of health care costs. This section does not change the health insurance coverage of the gestational carrier or the responsibility of the insurance company to pay benefits under a policy that covers a gestational carrier. (Added 2017, No. 162 (Adj. Sess.), § 1.)