Massachusetts has long been considered a surrogacy-friendly state, and the Massachusetts Parentage Act, effective January 1, 2025 (G.L. c. 209C, § 28 et seq.), has added a clearer statutory framework to the strong foundation of case law courts here had already established. Even so, intended parents regularly come to the surrogacy process with assumptions that do not match how the law works. Knowing the distinctions early helps avoid missteps that can complicate or delay your path to parenthood.
Gestational and Genetic Surrogacy Are Not the Same Thing Legally
Massachusetts courts have consistently supported gestational surrogacy, which involves an embryo created through IVF with no genetic connection between the surrogate and the child. Genetic surrogacy, where the surrogate uses her own egg, is a different matter entirely. Genetic surrogacy arrangements can present significant legal complexity in Massachusetts, including additional steps to establish parental rights.
The vast majority of surrogacy journeys today involve gestational surrogacy, and for good reason. If you are in the early stages of exploring your options, it is worth understanding this distinction before making any decisions about your arrangement.
A Well-Drafted Contract Is Not Optional
Some intended parents assume that once a surrogate is matched and everyone is in agreement, the legal documentation is a formality. It is not. Under the Massachusetts Parentage Act, a gestational surrogacy agreement must substantially comply with statutory requirements to be enforceable (G.L. c. 209C, §§ 28A–28C). The agreement must be in place before any medical procedures begin. A contract that is improperly drafted or executed after the medical process has started may not receive the legal recognition that protects your parental rights.
Pre-Birth Orders Are Available, but Outcomes Can Vary
Pre-birth parentage orders, which allow intended parents to be named on the birth certificate before the child is born, are available in Massachusetts and routinely granted in gestational surrogacy cases. However, courts in Massachusetts are still adjusting to the new parentage law, so as a result, some counties have different requirements than others. Assuming that a pre-birth order will automatically be issued in your case, without reviewing the specifics with an attorney, is a common and potentially costly misunderstanding.
Massachusetts Residency Is Not Required, but Location Still Matters
Intended parents do not need to be Massachusetts residents to pursue surrogacy here, and surrogates are not required to reside in Massachusetts. Massachusetts law can govern the surrogacy contract if a party lives in Massachusetts or at least one (1) medical procedure or mental health consultation occurs in Massachusetts. However, in order to obtain a pre-birth order in Massachusetts, one of the following circumstances must apply: 1.) the birth must be anticipated to occur in Massachusetts, 2.) The intended Parents live in Massachusetts or 3.) The surrogate lives in Massachusetts. Intended parents who live outside Massachusetts, or who have international citizenship considerations, should raise those details early in the process.
Interstate and international implications can affect the steps required to bring your child home and establish full legal recognition of your parental rights in every relevant jurisdiction. (The Law Office of Melissa L. Torto does not assist with estate planning or immigration matters. Intended parents with those needs should engage attorneys who practice in those areas.)
The Birth Is a Milestone, Not the Finish Line
Depending on the circumstances of your arrangement, there may be legal steps that need to be completed after the delivery, including post-birth parentage orders, birth certificate amendments, or additional documentation for international families. Treating the birth as the end of the legal process can create complications that are far easier to address proactively.
Contact Our Massachusetts Surrogacy Attorney
Every surrogacy journey is shaped by the specific circumstances of the intended parents, the surrogate, and the state where the birth will occur. Attorney Melissa Torto works with families throughout Massachusetts and across the country to ensure that every legal step is handled with precision and care. Call the Law Office of Melissa L. Torto, LLC at 617-812-9974 or schedule an online consultation.