§ 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 psychosocial education and counseling related to the gestational carrier
agreement; 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; amended 2023, No. 175 (Adj. Sess.), § 11, eff. July 1, 2024.)
§ 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.
(f) A surrogacy agreement that substantially complies with this section and section 801 of this title is enforceable. (Added 2017, No. 162 (Adj. Sess.), § 1; amended 2023, No. 175 (Adj. Sess.), § 11a, eff. July 1, 2024.)
§ 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 who is not a known family member
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 unless otherwise determined by the court. (Added 2017, No. 162 (Adj. Sess.), § 1; amended 2023, No. 175 (Adj. Sess.), § 12, eff. July 1, 2024.)
§ 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 the carrier’s 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.
(e) An uncontested petition for a judgment of parentage pursuant to this section shall
be resolved by the court promptly. (Added 2017, No. 162 (Adj. Sess.), § 1; amended 2019, No. 24, § 5; 2023, No. 175 (Adj. Sess.), § 13, eff. July 1, 2024.)
§ 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. Not enforceable. A gestational carrier agreement that does not substantially 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; amended 2023, No. 175 (Adj. Sess.), § 13e, eff. July 1, 2024.)
§ 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.)