The Massachusetts Parentage Act created the state's first comprehensive statutory framework for surrogacy, codified at G.L. c. 209C, sections 28 to 28P, effective January 1, 2025. It sets out requirements for valid, enforceable gestational and genetic surrogacy agreements and establishes how intended parents obtain a parentage judgment when a surrogate carries their child. A gestational agreement that substantially complies with the statute is enforceable on its own; a genetic agreement must be validated by the Probate and Family Court before any assisted reproduction takes place.
Massachusetts previously handled surrogacy through a mix of case law and individualized court orders, with no single statute governing what made a surrogacy agreement valid or how intended parents established parentage. Sections 28 through 28P of the parentage chapter change that, giving surrogates, intended parents, and the attorneys and agencies who work with them a defined statutory framework for the first time.
This article explains how the law worked before 2025, the two kinds of surrogacy the statute recognizes, who may take part, what an agreement must say, how parentage is established at birth, and what happens when an agreement falls short or something unexpected occurs.
How Did Massachusetts Handle Surrogacy Before 2025?
Through three decisions of the Supreme Judicial Court and a great deal of individual court practice. In R.R. v. M.H., 426 Mass. 501 (1998), the court declared a paid traditional surrogacy agreement unenforceable, for two reasons. Drawing on the adoption statute, it held that a mother's consent to give up custody is not effective unless given on or after the fourth day following the birth. And it held that the payment of money to influence the mother's custody decision made the custody agreement void.
In Culliton v. Beth Israel Deaconess Medical Center, 435 Mass. 285 (2001), the court held that a Probate and Family Court judge could use the court's general equity power to declare genetic parents the legal parents of twins carried by a gestational carrier, and to order the hospital to list them on the birth records. It confined that holding to its facts: the plaintiffs were the sole genetic sources, the carrier agreed, and no one contested the case. Hodas v. Morin, 442 Mass. 544 (2004), extended the same route to parents and a carrier who lived outside Massachusetts where the birth was to take place here.
In Culliton the court also said that the Legislature was the most suitable forum to provide "a comprehensive set of laws" on these questions. The Parentage Act, St. 2024, c. 166, is that set of laws.
What Is the Difference Between Gestational and Genetic Surrogacy?
The statute's definitions, in G.L. c. 209C, section 1A, draw the line by whose genetic material is used. A gestational surrogate agrees to become pregnant through assisted reproduction using gametes that are not their own. A genetic surrogate agrees to become pregnant through assisted reproduction using their own gamete. In both cases the surrogate is, by definition, not an intended parent, and an intended parent is a person, married or unmarried, who manifests an intent to be legally bound as a parent of the resulting child.
The two tracks share the same eligibility rules and the same required contents, but they are validated, and parentage is confirmed, in different ways.
| Question | Gestational surrogacy | Genetic surrogacy |
|---|---|---|
| Whose egg is used? | Not the surrogate's | The surrogate's own |
| Is court approval needed before pregnancy? | No. An agreement that substantially complies with sections 28A, 28B and 28C is enforceable (section 28J) | Yes. The court must validate the agreement in a proceeding commenced before assisted reproduction, and must rule within 60 days (section 28K) |
| When do intended parents become parents? | By operation of law at birth (section 28G) | At birth, under a validated agreement (section 28M) |
| How is parentage confirmed in court? | A judgment of parentage, before or after birth, within 60 days of docketing (section 28I) | An order issued on the intended parents' notice of the birth, without notice and hearing (section 28M) |
| When can a party cancel? | Before an embryo transfer, by written notice (section 28F) | Before a transfer, by written notice attested by a notary; never once a pregnancy results (section 28L) |
Who Can Be a Surrogate or an Intended Parent?
Section 28A sets the eligibility rules for both sides of the agreement.
- A surrogate must be at least 21 years old, must have previously given birth to at least one child, must complete a medical evaluation related to surrogacy by a licensed physician, and must complete a mental health consultation with a licensed mental health professional.
- Each intended parent, whether or not genetically related to the child, must be at least 21 years old and must complete a mental health consultation with a licensed mental health professional.
In both cases the mental health professional must be independent of the health care providers or facility carrying out the assisted reproduction. The records of these evaluations and consultations must be made available to the surrogate, the surrogate's spouse, and each intended parent, and otherwise stay confidential absent a court order.
What Must a Surrogacy Agreement Contain?
Section 28B lists the formal requirements for an enforceable agreement. Among them:
- The right parties. The prospective surrogate, the surrogate's spouse if any, and each intended parent must all be parties.
- A Massachusetts connection. At least one party must live in Massachusetts or, if none does, at least one medical evaluation, medical procedure or mental health consultation under the agreement must take place here.
- In writing, signed and notarized. Every party signs, every signature is attested by a notary, and every party signs a written acknowledgment of receiving a copy.
- Signed first. The agreement must be executed before any medical procedure attempting to cause a pregnancy, other than the required evaluations, and in every instance before transfer of embryos or gametes.
- Separate lawyers, paid for by the intended parents. The surrogate and spouse, and the intended parents, must each have independent legal representation, identified in the agreement. One attorney for the surrogate and spouse and one for the intended parents is enough.
Section 28C then lists terms the agreement must contain. The surrogate and any spouse agree to have no claim to parentage of any resulting child and acknowledge the exclusive parentage of the intended parents. The intended parents, jointly and severally, agree to be the exclusive parents and to take on financial support of every resulting child immediately upon birth, regardless of the number of children born or the gender or condition of each child. The intended parents must also pay the surrogate's surrogacy-related expenses that insurance does not cover, including assisted reproduction, prenatal care, labor and delivery, and the children's medical expenses.
Payment is expressly allowed. Section 28C(f) provides that an agreement may provide for payment of consideration and reasonable expenses, and for reimbursement of specific expenses if the agreement is terminated. That is a clear change from R.R. v. M.H., where payment to the surrogate was central to the court's refusal to enforce the agreement.
Who Makes Medical Decisions During the Pregnancy?
The surrogate. Section 28C(c) provides that the agreement shall not infringe on the surrogate's right to make all health and welfare decisions regarding their body and pregnancy, from attempts to become pregnant through labor, delivery and the post-partum period. It names two examples specifically: whether to consent to a caesarean section and whether to undergo multiple embryo transfers. Except as otherwise provided by law, any written or oral agreement to waive or limit those rights is void as against public policy.
The remedy provisions follow the same line. A court cannot order specific performance against a surrogate of a term requiring them to become pregnant, terminate or not terminate a pregnancy, or submit to medical procedures (sections 28J(d) and 28P(b)). The agreement must also include information about each party's right to terminate it.
Can a Surrogacy Agreement Be Cancelled?
Yes, within limits, and the limits differ by track.
- Gestational agreements (section 28F). Any party may terminate at any time before an embryo transfer or implantation by giving written notice to all other parties. If a transfer does not result in pregnancy, a party may terminate before the next one. The intended parents remain responsible for reimbursable expenses the surrogate incurred up to the date of termination.
- Genetic agreements (section 28L). The same window applies, but the notice must be attested by a notary, a party who terminates after the court has validated the agreement must file notice with the court, and no one may terminate a validated agreement once a transfer has resulted in a pregnancy. Unless the agreement provides otherwise, the surrogate is not entitled to non-expense compensation after termination.
In both cases, except where there is fraud, a surrogate who terminates in compliance with the statute is not liable to the intended parents for punitive or liquidated damages.
How Do Intended Parents Become the Legal Parents?
Gestational surrogacy. Under section 28G, upon the birth of a child conceived under a gestational surrogacy agreement, each intended parent is a parent of the child by operation of law, and parental rights vest exclusively in the intended parents immediately upon birth. The surrogate and the surrogate's spouse are not parents. Section 28I adds a court procedure to confirm it: before, on or after the birth, any party may ask the Probate and Family Court for a judgment of parentage that declares the intended parents to be the parents, directs the contents of the birth record, and, if necessary, orders the hospital to treat the intended parents as the sole legal parents for naming and medical decisions.
The procedure is designed to be quick. The complaint includes a copy of the agreement, a sworn affidavit of the assisted reproductive physician, and certifications from the attorneys for both sides that the requirements of sections 28A, 28B and 28C have been met. A complaint with those documents is sufficient to establish parentage, and a hearing is not required unless the court needs information it cannot otherwise obtain. The court must issue the judgment expeditiously, and no later than 60 days from docketing.
Genetic surrogacy. The court's role comes earlier. Under section 28K, the proceeding to validate a genetic surrogacy agreement must be commenced before any assisted reproduction related to the agreement, and the court must issue its validating order within 60 days if it finds the statutory requirements are met and that all parties entered the agreement voluntarily and understand its terms. After the birth, the intended parents file a notice of the birth with the court that validated the agreement, and under section 28M the court issues an order declaring them the parents, immediately or as soon as practicable, without notice and hearing. If the intended parents fail to file that notice, the surrogate may file notice of the birth within 60 days.
The record stays private. At a party's request, the court must close a section 28I proceeding to the public, and the pleadings and docket entries are not open to inspection unless the court orders otherwise for good cause or the child or the parties request them. A section 28M order applies the same impoundment.
What Happens If the Agreement Does Not Follow the Rules?
The statute does not simply void a flawed agreement, and the consequences again depend on the track.
- A technical slip in a gestational agreement. If the attorneys cannot certify full compliance because of a technical or nonmaterial deviation, the court may still enforce the agreement and issue a judgment of parentage if it finds the agreement in substantial compliance (section 28I(f)).
- A gestational agreement that does not substantially comply. The court determines the rights and duties of the parties consistent with their intent at the time they signed (section 28J(b)).
- A genetic agreement that was never validated. If all parties agree, the court may still validate it after assisted reproduction and before birth (section 28N(b)). If a child is born under an unvalidated genetic agreement, the surrogate is not automatically a parent, and the court decides parentage based on the child's best interest, considering the factors in section 26(a) and the parties' intent when they signed (section 28N(c)).
The safer course on either track is to meet every requirement from the start. A defectively formed agreement leaves parentage in the hands of a judge's assessment at exactly the moment the family most needs certainty.
What If Something Unexpected Happens?
The statute anticipates several situations that once had no clear answer.
- A clinic or laboratory error. If a mix-up means the child is not genetically related to an intended parent or their donor, the intended parents are still the parents and the surrogate is not (sections 28G(d) and 28M(c)), subject to the statute's exceptions.
- The death of an intended parent. An intended parent who dies after the embryo transfer and before the birth is still a parent (sections 28G(e) and 28O(a)). One who dies before the transfer is not, unless the agreement provides otherwise and either the transfer occurs within 36 months of the death or the birth occurs within 45 months of it (sections 28H and 28O(b)).
- A marriage or divorce after signing. Unless the agreement provides otherwise, a later marriage, divorce or annulment of the surrogate or an intended parent does not affect the agreement's validity, and a new spouse's consent is not required (section 28D).
- A claim that the gestational surrogate is the genetic parent. The court may order genetic testing on sufficient evidence, and if the child is the surrogate's genetic child, parentage is decided under the chapter's general rules (section 28G(c)).
Outside that last situation, genetic testing cannot be used to undo the result. Section 17 of the chapter now provides that genetic testing shall not be used to challenge the parentage of a person who is a parent under sections 28 to 28P.
Which Court Handles a Surrogacy Case?
The Probate and Family Court. Under section 28(b), the case may be brought in the county where the child lives, is born or is expected to be born, where a parent or intended parent lives, or where the surrogate lives. Once a court is conducting a surrogacy proceeding, section 28E gives it exclusive, continuing jurisdiction over all matters arising out of the agreement until the agreement terminates or 180 days after the birth, whichever comes first. Custody, parenting time and child support are then decided under the ordinary rules that apply to any child.
Do Agreements Signed Before 2025 Follow the New Rules?
The Parentage Act took effect on January 1, 2025, and that effective date is its only timing provision. It does not say how agreements signed before that date are to be treated. Families and surrogates who entered into agreements before January 1, 2025 should have those agreements reviewed against the new statutory validity requirements, and should confirm that the parentage of any child already born is secured by a judgment.
Going forward, any surrogacy arrangement in Massachusetts should be structured to satisfy sections 28 to 28P from the start, since a defectively formed agreement risks being unenforceable exactly when it matters most, at the point of birth. For a genetic agreement, that means going to court before any assisted reproduction begins.
Contact Brigantine Law if you are considering surrogacy as an intended parent, if you need to confirm parentage after a surrogacy birth, or if you want an existing agreement reviewed against the statute.
G.L. c. 209C, sections 1A, 17 and 28 to 28P, and section 67 of St. 2024, c. 166, were verified against the Massachusetts General Laws and Session Laws in October 2026. R.R. v. M.H., Culliton v. Beth Israel Deaconess Medical Center and Hodas v. Morin were read in the published opinions.