§ 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.)