Bill Text: HI SB2632 | 2018 | Regular Session | Introduced
Bill Title: Relating To Surrogacy.
Spectrum: Partisan Bill (Democrat 2-0)
Status: (Introduced - Dead) 2018-01-24 - Referred to CPH, JDC. [SB2632 Detail]
Download: Hawaii-2018-SB2632-Introduced.html
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THE SENATE |
S.B. NO. |
2632 |
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TWENTY-NINTH LEGISLATURE, 2018 |
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STATE OF HAWAII |
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A BILL FOR AN ACT
relating to surrogacy.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. Chapter 584, Hawaii Revised Statutes, is amended by adding a new part to be appropriately designated and to read as follows:
"Part . surrogacy agreements
§584-A Definitions. As used in this part:
"Genetic surrogate" means a woman who is not an intended parent and who agrees to become pregnant through assisted reproduction using her own gamete under a genetic surrogacy agreement as provided in this part.
"Gestational surrogate" means a woman who is not an intended parent and who agrees to become pregnant through assisted reproduction using gametes that are not her own under a gestational surrogacy agreement as provided in this part.
"Intended parent" means an individual, married or unmarried, who manifests an intent to be legally bound as a parent of a child conceived by assisted reproduction.
"Surrogacy agreement" means an agreement between one or more intended parents and a woman who is not an intended parent in which the woman who is not an intended parent agrees to become pregnant through assisted reproduction and that provides that each intended parent is a parent of a child conceived under the agreement. Unless otherwise specified, "surrogacy agreement" includes gestational surrogacy agreements and genetic surrogacy agreements.
"Surrogate" means a woman who is not an intended parent and who agrees to become pregnant through assisted reproduction under a surrogacy agreement. Unless otherwise specified, "surrogate" includes gestational surrogates and genetic surrogates.
§584-B Eligibility to enter a surrogacy agreement. (a) To execute an agreement to act as a gestational or genetic surrogate, a woman must:
(1) Be at least twenty-one years old;
(2) Previously have given birth to at least one child;
(3) Complete a medical evaluation related to the surrogacy arrangement by a licensed medical doctor;
(4) Complete a mental health consultation by a licensed mental health professional; and
(5) Have independent legal representation of her choice throughout the surrogacy arrangement regarding the terms of the surrogacy agreement and the potential legal consequences of the agreement.
(b) To execute a surrogacy agreement, each intended parent, whether genetically related to the child, shall:
(1) Be at least twenty-one years old;
(2) Complete a medical evaluation related to the surrogacy arrangement by a licensed medical doctor;
(3) Complete a mental health consultation by a licensed mental health professional; and
(4) Have independent legal representation of the intended parent's choice throughout the surrogacy arrangement regarding the terms of the surrogacy agreement and the potential legal consequences of the agreement.
§584-C Process requirements of surrogacy agreements. A surrogacy agreement shall be executed in compliance with the following requirements:
(1) At least one party to the agreement shall be a resident of Hawaii or, if no party is a resident of Hawaii, at least one medical evaluation or procedure or mental health consultation under the agreement must occur in Hawaii;
(2) The surrogate and each intended parent shall meet the requirements of section 584-B;
(3) Each intended parent, the surrogate, and the surrogate's spouse, if any, shall be parties to the surrogacy agreement;
(4) The surrogacy agreement shall be in a record signed by each party described in paragraph (3);
(5) The surrogate and each intended parent shall acknowledge in a record receipt of a copy of the surrogacy agreement;
(6) The signature of each party to the surrogacy agreement shall be attested by a notary public or witnessed;
(7) The surrogate and the intended parent or parents shall have independent legal representation throughout the surrogacy arrangement regarding the terms of the surrogacy agreement and the potential legal consequences of the agreement, and each counsel shall be identified in the surrogacy agreement; and
(8) The agreement shall be executed before a medical procedure occurs related to the surrogacy agreement, other than the medical evaluation and mental health consultation required under section 584-B.
§584-D Content of surrogacy agreements. (a) A surrogacy agreement shall comply with the following requirements:
(1) A surrogate shall agree to attempt to become pregnant by means of assisted reproduction;
(2) Except as otherwise provided in sections 584-K, 584-N, and 584-O, the surrogate and the surrogate's spouse or former spouse, if any, shall have no claim to parentage of a child conceived by assisted reproduction under the agreement;
(3) The surrogate's spouse, if any, shall acknowledge and agree to comply with the surrogate's obligations under the agreement;
(4) Except as otherwise provided in sections 584-K, 584-N, and 584-O, the intended parent or, if there are two intended parents, each one jointly and severally, immediately on birth shall be the exclusive parent or parents of the child, regardless of number of children born or the gender or mental or physical condition of each child;
(5) Except as otherwise provided in sections 584-K, 584-N, and 584-O, the intended parent or, if there are two intended parents, each parent jointly and severally, immediately on birth shall assume responsibility for the financial support of the child, regardless of number of children born or the gender or mental or physical condition of each child;
(6) The agreement shall include information disclosing how each intended parent will cover the surrogacy-related expenses of the surrogate and the medical expenses of the child; provided that:
(A) If health-care coverage is used to cover the medical expenses, the disclosure shall include a summary of the health care policy provisions related to coverage for surrogate pregnancy, including any possible liability of the surrogate, third-party-liability liens, other insurance coverage, and any notice requirement that could affect coverage or liability of the surrogate;
(B) If the extent of coverage is uncertain, a statement of that fact is sufficient to comply with this paragraph; and
(C) Unless the agreement expressly provides otherwise, the review and disclosure do not constitute legal advice;
(7) The agreement shall permit the surrogate to make all health and welfare decisions regarding herself and her pregnancy; provided that this does not enlarge or diminish the surrogate's right to terminate the pregnancy; and
(8) The agreement shall include information about each party's right under this part to terminate the surrogacy agreement.
(b) A surrogacy agreement may provide for:
(1) Payment of consideration and reasonable expenses; and
(2) Reimbursement of specific expenses if the agreement is terminated under this part.
(c) A right created under a surrogacy agreement is not assignable and there is no third-party beneficiary of the agreement other than the child.
§584-E Effect of subsequent change in marital status on surrogacy agreement. (a) Unless the surrogacy agreement expressly provides otherwise, a change in marital status of the surrogate or an intended parent after the agreement is signed by all parties shall not affect the validity of the agreement.
(b) Unless the surrogacy agreement expressly provides otherwise:
(1) If a surrogate or intended parent marries after the agreement is signed by all parties, the spouse shall not become a party to the agreement; consent of the non-party spouse shall not be required for the agreement; and the non-party spouse shall not, based on the agreement, be a parent of a child conceived by assisted reproduction under the agreement; and
(2) If the intended parents undergo divorce, dissolution of marriage, annulment, declaration of invalidly of marriage, legal separation, or separate maintenance before the birth of a child conceived by assisted reproduction under a surrogacy agreement, each intended parent shall still be a parent of the child.
584-F Inspection of documents. Unless the court orders otherwise, a petition and any other document related to a surrogacy agreement filed with the court under this part are not open to inspection by any person other than the parties to the proceeding, a child conceived by assisted reproduction under the agreement, their attorneys, and an institution or agency having a legitimate interest in the proceedings from the standpoint of the welfare of a child conceived by assisted reproduction under the agreement. A court shall not authorize a person to inspect a document related to the agreement unless required by exigent circumstances. The person seeking to inspect the document may be required to pay the expense of preparing a copy of the document to be inspected.
§584-G Exclusive, continuing jurisdiction. During the period after the execution of a surrogacy agreement until ninety days after the birth of a child conceived by assisted reproduction under the agreement, a court conducting a proceeding under this part has exclusive, continuing jurisdiction over all matters arising out of the agreement. This section shall not give the court jurisdiction over a child-custody or child-support proceeding if jurisdiction is not otherwise authorized by law.
§584-H Termination of gestational surrogacy agreement. (a) A party to a gestational surrogacy agreement may terminate the agreement at any time before an embryo transfer by giving notice of termination in a record to all other parties. If an embryo transfer does not result in a pregnancy, a party may terminate the agreement at any time before a subsequent embryo transfer.
(b) Unless a gestational surrogacy agreement provides otherwise, upon termination of the agreement under subsection (a), the parties are released from the agreement, except that each intended parent remains responsible for expenses that are reimbursable under the agreement and are incurred by the surrogate through the date of termination.
(c) Except in cases involving fraud, neither a surrogate nor the surrogate's spouse or former spouse, if any, is liable to the intended parent or parents for a penalty or liquidated damages for terminating a surrogacy agreement under this section.
584-I Parentage under gestational surrogacy agreements. (a) Except as otherwise provided in subsection (c) or sections 584-J(b) or 584-L, on birth of a child conceived by assisted reproduction under a gestational surrogacy agreement, each intended parent is, by operation of law, a parent of the child.
(b) Except as otherwise provided in subsection (c) or section 584-L, neither the surrogate nor the surrogate's spouse or former spouse, if any, is a parent of the child.
(c) If a child is alleged to be a genetic child of the woman who agreed to be a gestational surrogate, the court shall order genetic testing of the child. If the child is a genetic child of the woman who agreed to be a gestational surrogate, parentage shall be determined pursuant to section 584-3.
(d) Except as otherwise provided in subsection (c) or sections 584-J(b) or 584-L, if, due to a clinical or laboratory error, a child conceived by assisted reproduction under a gestational surrogacy agreement is not genetically related to an intended parent or donor who donated to the intended parent or parents, each intended parent, and not the gestational surrogate and the surrogate's spouse or former spouse, if any, is a parent of the child, subject to any other claim of parentage.
§584-J Parentage of deceased intended parent under gestational surrogacy agreements. (a) Section 584-I applies to an intended parent even if the intended parent died during the period between the transfer of a gamete or embryo and the birth of a child.
(b) Except as otherwise provided in section 584-L, an intended parent is not a parent of a child conceived by assisted reproduction under a gestational surrogacy agreement if the intended parent dies before the transfer of a gamete or embryo unless:
(1) The agreement provides otherwise; and
(2) The transfer of a gamete or embryo occurs within thirty-six months of the death of the intended parent or birth of the child occurs within forty-five months of the death of the intended parent.
§584-K Order of parentage under gestational surrogacy agreement. (a) Except as otherwise provided in sections 584-I(c) or 584-L, before, on, or after the birth of a child conceived by assisted reproduction under a gestational surrogacy agreement, a party to the agreement may commence a proceeding in the family court for an order or judgment:
(1) Declaring that each intended parent is a parent of the child and ordering that parental rights and duties vest immediately on the birth of the child exclusively in each intended parent;
(2) Declaring that the gestational surrogate and the surrogate's spouse or former spouse, if any, are not the parents of the child;
(3) Designating the content of the birth record in accordance with 584-23 and directing the department of health to designate each intended parent as a parent of the child;
(4) To protect the privacy of the child and the parties, declaring that the court record is not open to inspection except as authorized under section 584-F;
(5) If necessary, that the child be surrendered to the intended parent or parents; and
(6) For other relief that the court deems necessary and proper.
(b) If the court issues an order or judgment under subsection (a) before the birth of the child, the court shall stay enforcement of the order or judgment until the birth of the child.
(c) Neither the State nor the department of health is a necessary party to a proceeding under subsection (a).
§584-L Effect of gestational surrogacy agreement. (a) A gestational surrogacy agreement that complies with sections 584-B, 584-C, and 584-D is enforceable.
(b) If a child was conceived by assisted reproduction under a gestational surrogacy agreement that does not comply with sections 584-B, 584-C, and 584-D, the court shall determine the rights and duties of the parties to the agreement consistent with the intent of the parties at the time of the execution of the agreement. Each party to the agreement and any individual who at the time of the execution of the agreement was a spouse of a party to the agreement has standing to maintain a proceeding to adjudicate an issue related to the enforcement of the agreement.
(c) Except as provided in a gestational surrogacy agreement or in subsection (d) or (e), if the agreement is breached by the surrogate or one or more intended parents, the non-breaching party is entitled to the remedies available at law or in equity.
(d) Specific performance is not a remedy available for breach by a surrogate of a provision in the agreement that the surrogate be impregnated, terminate or not terminate a pregnancy, or submit to medical procedures.
(e) Except as otherwise provided in subsection (d), if an intended parent is determined to be a parent of the child, specific performance is a remedy available for:
(1) Breach of the agreement by a surrogate which prevents the intended parent from exercising immediately on the birth of the child the full rights of parentage; or
(2) Breach by the intended parent which prevents the intended parent's acceptance, immediately on the birth of the child conceived by assisted reproduction under the agreement, of the duties of parentage.
§584-M Requirements to validate genetic surrogacy agreement. (a) Except as otherwise provided in section 584-P, to be enforceable, a genetic surrogacy agreement shall be validated by the family court. A proceeding to validate the agreement shall be commenced before the assisted reproduction related to the surrogacy agreement.
(b) The court shall issue an order validating a genetic surrogacy agreement if the court finds that:
(1) The requirements of sections 584-B, 584-C, and 584-D are satisfied; and
(2) All parties entered into the agreement voluntarily and understand its terms.
(c) A person who terminates a genetic surrogacy agreement under section 584-N shall file notice of the termination with the court. Upon receipt of the notice, the court shall vacate any order issued under subsection (b). A terminating person who does not notify the court of the termination of the agreement may be subject to sanctions at the discretion of the court.
§584-N Termination of genetic surrogacy agreement. (a) An intended parent who is a party to a genetic surrogacy agreement may terminate the agreement at any time before a gamete or embryo transfer by giving notice of termination in a record to all other parties. If a gamete or embryo transfer does not result in a pregnancy, a party may terminate the agreement at any time before a subsequent gamete or embryo transfer. The notice of termination shall be attested by a notarial officer or witnessed.
(b) A genetic surrogate who is a party to a genetic surrogacy agreement may withdraw consent to the agreement at any time before seventy-two hours after the birth of a child conceived by assisted reproduction under the agreement. To withdraw consent, the genetic surrogate shall execute a notice of termination in a record stating the surrogate's intent to terminate the agreement. The notice of termination shall be attested by a notary public or witnessed and shall be delivered to each intended parent at any time before seventy-two hours after the birth of the child.
(c) On termination of the genetic surrogacy agreement pursuant to subsection (a) or (b), the parties are released from all obligations under the agreement except that each intended parent remains responsible for all expenses incurred by the surrogate through the date of termination which are reimbursable under the agreement. Unless the agreement provides otherwise, the surrogate is not entitled to any non-expense related compensation paid for serving as a surrogate.
(d) Except in a case involving fraud, neither a genetic surrogate nor the surrogate's spouse or former spouse, if any, is liable to the intended parent or parents for a penalty or liquidated damages, for terminating a genetic surrogacy agreement under this section.
§584-O Parentage under a validated genetic surrogacy agreement. (a) Unless a genetic surrogate exercises the right under section 584-N to terminate a genetic surrogacy agreement, each intended parent is a parent of a child conceived by assisted reproduction under an agreement validated under section 584-M.
(b) Unless a genetic surrogate exercises the right under section 584-N to terminate the genetic surrogacy agreement, on proof of a court order issued under section 584-M validating the agreement, the court shall issue an order:
(1) Declaring that each intended parent is a parent of a child conceived by assisted reproduction under the agreement and ordering that parental rights and duties vest exclusively in each intended parent;
(2) Declaring that the genetic surrogate and the surrogate's spouse or former spouse, if any, are not parents of the child;
(3) Designating the content of the birth record in accordance with 584-23 and directing the department of health to designate each intended parent as a parent of the child;
(4) To protect the privacy of the child and the parties, declaring that the court record is not open to inspection except as authorized under section 584-F;
(5) If necessary, that the child be surrendered to the intended parent or parents; and
(6) For other relief that the court deems necessary and proper.
(c) If a genetic surrogate terminates under section 584-N(b) a genetic surrogacy agreement, parentage of the child conceived by assisted reproduction under the agreement shall be determined under section 584-3.
(d) If a child born to a genetic surrogate is alleged not to have been conceived by assisted reproduction, the court shall order genetic testing to determine the genetic parentage of the child. If the child was not conceived by assisted reproduction, parentage shall be determined under section 584-3. Unless the genetic surrogacy agreement provides otherwise, if the child was not conceived by assisted reproduction the surrogate is not entitled to any non-expense related compensation paid for serving as a surrogate.
(e) Unless a genetic surrogate exercises the right under section 584-N to terminate the genetic surrogacy agreement, if an intended parent fails to file notice required under section 584-N(a), the genetic surrogate or department of human services may file with the court, not later than sixty days after the birth of a child conceived by assisted reproduction under the agreement, notice that the child has been born to the genetic surrogate. Unless the genetic surrogate has properly exercised the right under section 584-N to withdraw consent to the agreement, on proof of a court order issued under section 584-M validating the agreement, the court shall order that each intended parent is a parent of the child.
§584-P Effect of non-validated genetic surrogacy agreement. (a) A genetic surrogacy agreement, whether or not in a record, that is not validated under section 584-M is enforceable only to the extend provided in this section and section 584-R.
(b) If all parties agree, a court may validate a genetic surrogacy agreement after assisted reproduction has occurred but before the birth of a child conceived by assisted reproduction under the agreement.
(c) If a child conceived by assisted reproduction under a genetic surrogacy agreement that is not validated under section 584-M is born and the genetic surrogate, consistent with section 584-N(b), withdraws her consent to the agreement before seventy-two hours after the birth of the child, the court shall adjudicate the parentage of the child under section 584-3.
(d) If a child is conceived by assisted reproduction under a genetic surrogacy agreement that is not validated under section 584-M is born and a genetic surrogate does not withdraw her consent to the agreement, consistent with section 584-N(b) before seventy-two hours after the birth of the child, the genetic surrogate is not automatically a parent and the court shall adjudicate parentage of the child based on the best interests of the child, taking into account the intent of the parties at the time of the execution of the agreement.
(e) The parties to a genetic surrogacy agreement have standing to maintain a proceeding to adjudicate parentage under this section.
§584-Q Parentage of deceased intended parent under genetic surrogacy agreements. (a) Except as otherwise provided in sections 584-O or 584-P, on birth of a child conceived by assisted reproduction under a genetic surrogacy agreement, each intended parent is, by operation of law, a parent of the child, notwithstanding the death of an intended parent during the period between the transfer of a gamete or embryo and the birth of the child.
(b) Except as otherwise provided in sections 584-O or 584-P, an intended parent is not a parent of a child conceived by assisted reproduction under a genetic surrogacy agreement if the intended parent dies before the transfer of a gamete or embryo unless:
(1) The agreement provides otherwise; and
(2) The transfer of the gamete or embryo occurs not later than thirty-six months after the death of the intended parent, or the birth of the child occurs not later than forty-five months after the death of the intended parent.
§584-R Breach of genetic surrogacy agreement. (a) Subject to section 584-N(c), if a genetic surrogacy agreement is breached by a genetic surrogate or one or more intended parents, the non-breaching party is entitled to the remedies available at law or in equity.
(b) Specific performance is not a remedy available for breach by a genetic surrogate of a requirement of a validated or non-validated genetic surrogacy agreement that the surrogate be impregnated, terminate or not terminate a pregnancy, or submit to medical procedures.
(c) Except as otherwise provided in subsection (b), specific performance is a remedy available for:
(1) Breach of a validated genetic surrogacy agreement by a genetic surrogate of a requirement which prevents an intended parent from exercising the full rights of parentage seventy-two hours after the birth of the child; or
(2) Breach by an intended parent which prevents the intended parent's acceptance of duties of parentage seventy-two hours after the birth of the child."
SECTION 2. Section 584-3, Hawaii Revised Statutes, is amended to read as follows:
"[[]§584-3[]] How
parent and child relationship established.
(a) The parent and child
relationship between a child and:
(1) The natural mother may be established by proof of her having given birth to the child, or under this chapter;
(2) The natural father may be established under this chapter;
(3) An adoptive parent
may be established by proof of adoption[.];
(4) An intended parent may be established as provided in part .
(b) For the purposes of this section, "intended parent" has the same meaning as defined in section 584-A."
SECTION 3. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.
SECTION 4. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 5. This Act shall take effect upon its approval.
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INTRODUCED BY: |
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Report Title:
Parentage; Surrogacy Agreements; Intended Parents; Surrogates
Description:
Updates the Uniform Parentage Act in Hawaii to recognize intended parents under valid surrogacy agreements as parents. Specifies the requirements of gestational and genetic surrogacy agreements.
The summary description
of legislation appearing on this page is for informational purposes only and is
not legislation or evidence of legislative intent.
