Bill Text: MS SB2732 | 2025 | Regular Session | Introduced
Bill Title: Mississippi Gestational Carrier, Surrogacy and In Vitro and Parent Act; enact.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced) 2025-01-20 - Referred To Public Health and Welfare [SB2732 Detail]
Download: Mississippi-2025-SB2732-Introduced.html
MISSISSIPPI LEGISLATURE
2025 Regular Session
To: Public Health and Welfare
By: Senator(s) Fillingane
Senate Bill 2732
AN ACT TO ENACT THE MISSISSIPPI GESTATIONAL CARRIER, SURROGACY AND IN VITRO CHILD AND PARENT ACT; TO PROVIDE FOR CERTAIN TECHNICAL DEFINITIONS RELATED TO GESTATIONAL CARRIER, SURROGACY AND IN VITRO PREGNANCIES; TO PROVIDE FOR CERTAIN REQUIREMENTS RELATED TO THE DONATION OF EGGS, SPERM OR EMBRYOS; TO ESTABLISH THE REQUIREMENTS FOR GESTATIONAL CARRIER, AGREEMENTS AND GESTATIONAL CARRIER CONTRACTS; TO SET CERTAIN PARENTAL RIGHTS INVOLVING CHILDREN PRODUCED AS A RESULT OF ARTIFICIAL OR IN VITRO INSEMINATION; TO PROVIDE FOR AN EXPEDITED AFFIRMATION PROCEDURE FOR PARENTAL STATUS INVOLVING GESTATIONAL CARRIER SURROGACY; TO PROVIDE CERTAIN REQUIREMENTS FOR THE DISPOSITION OF EGGS, SPERM OR PRE-EMBRYOS; TO SET CERTAIN TECHNICAL REQUIREMENTS INVOLVING SURROGACY AND IN VITRO PREGNANCIES; TO AMEND SECTIONS 93-17-5, 93-17-6 AND 93-17-13, MISSISSIPPI CODE OF 1972, TO CONFORM WITH THE PROVISIONS OF THE ACT; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Title. This chapter shall be known and may be cited as the "Mississippi Gestational Carrier, Surrogacy and In Vitro Child and Parent Act."
SECTION 2. Definitions. For purposes of this chapter, unless the context requires otherwise, the following terms shall have the meanings ascribed herein:
(a) "Assisted reproductive technology" means those procreative procedures which involve the laboratory handling of human gametes or embryos, including, but not limited to, in vitro fertilization embryo transfer, gamete intrafallopian transfer, pronuclear stage transfer, tubal embryo transfer and zygote intrafallopian transfer.
(b) "Blood and tissue typing tests" include, but are not limited to, tests of red cell antigens, red cell isoenzymes, human leukocyte antigens and serum proteins.
(c) "Child" means an individual born from a pregnancy achieved by means of medically assisted fertility treatment in furtherance of a gestational surrogacy agreement or gestational carrier agreement.
(d) "Commissioning parent(s)" means the intended parent(s) of a pregnancy resulting through assisted reproductive technology.
(e) "Egg" means the unfertilized female reproductive cell.
(f) "Fertility technique" means artificial insemination, in vitro fertilization, egg donation and the use of donated embryos.
(g) "Fertilization" means the initial union of an egg and sperm.
(h) "Gestational carrier" or "Gestational surrogate" means a woman who is at least twenty-one (21) years of age and who voluntarily contracts to become pregnant by means of assisted reproductive technology without the use of an egg from her body and who agrees to terminate her parental rights and responsibilities to a resulting child in favor of the intended parent(s).
(i) "Surrogate" is defined as a woman who provides her egg and is also the person carrying the pregnancy. This term shall not include gestational carriers as such individual's eggs are not used to produce the pregnancy.
(j) "Gestational carrier agreement" or "Gestational surrogacy agreement" means a written agreement between the gestational carrier or surrogate and the commissioning parent(s).
(k) "Gamete intrafallopian transfer" means the direct transfer of eggs and sperm into the fallopian tube prior to fertilization.
(l) "Implantation" means the event that occurs when a fertilized embryo adheres to the uterine wall of a female.
(m) "Intended parent" means a male or female who, as evidenced by a gestational carrier agreement, intends to assert parental rights and responsibilities for a child conceived through a fertility technique, regardless of whether the child is biologically related to the intended parent.
(n) "Intended Father" means a male who, as evidenced by a gestational carrier agreement, intends to assert parental rights and responsibilities for a child conceived through a fertility technique, regardless of whether the child is biologically related to the male.
(o) "Intended mother" means a female who, as evidenced by a gestational carrier agreement, intends to assert parental rights and responsibilities for a child conceived through a fertility technique, regardless of whether the child is biologically related to the female.
(p) "In vitro" refers to a laboratory procedure performed in a laboratory environment outside a woman's body.
(q) "In vitro fertilization embryo transfer" means the transfer of an in vitro fertilized embryo into a woman's uterus.
(r) "Party" means the intended parent(s), the surrogate or the surrogate's spouse, if married.
(s) "Embryo" means the product of fertilization of an egg by a sperm.
(t) "Gestational surrogacy agreement" or "Gestational carrier agreement" means a written agreement among the parties that specifies the intent of the parties as to their rights and responsibilities in the gestational surrogacy arrangement, consistent with the provisions of this act. Such term shall mean an agreement for the gestational surrogate to bear the child, for payment by the intended parent(s) of the expenses allowed by this section, for the intended parent(s) to assert full parental rights and responsibilities to the child and for the gestational surrogate and her spouse, if applicable, to terminate their parental rights and responsibilities to the child in favor of the intended parent(s).
(u) "Sperm" means the male reproductive cell.
(v) "Tubal embryo transfer" means the transfer of an embryo into the fallopian tube.
SECTION 3. Donation of eggs, sperm or embryos. (1) The donor of any egg, sperm or embryo, upon written evidence of intent to donate, or in the absence of written evidence, upon clear and convincing evidence of intent to donate, shall relinquish all parental rights and obligations with respect to the donation or the resulting child or children, as applicable. Reasonable compensation directly related to the donation of eggs, sperm and embryos shall be permitted.
(2) The provisions of this act shall only apply to a surrogate or gestational carrier who is not the biological mother of the child.
SECTION 4. Gestational carrier agreement. (1) Individuals may enter into a gestational carrier agreement as specified in this section, but such an agreement may not affect final transfer of custody of a child or determination of parentage of a child. Final determination of parentage shall be made in accordance with Section 7 of this act.
(2) A gestational carrier agreement must include, but need not be limited to, the following terms:
(a) That the gestational carrier agrees to become pregnant by means of medically induced assisted reproduction technique(s), to bear the child or children, and to terminate any parental rights and responsibilities to the resulting child or children through a pre-birth legal proceeding determining parentage in the intended parent(s) rather than the gestational carrier pursuant to Section 7 of this act.
(b) That the gestational carrier agrees to submit to reasonable medical evaluation and treatment and to adhere to reasonable medical instructions about her prenatal health.
(c) Compensation may be paid to a person acting as gestational carrier as compensation for medical risks, physical discomfort, inconvenience, reimbursement of actual costs and living expenses, and the responsibilities she is undertaking in connection with her participation in the agreement.
(d) Compensation paid to a person acting as gestational carrier must be negotiated in good faith between the parties, and said payments to a person acting as gestational carrier shall not exceed the duration of the pregnancy and recuperative period of up to eight (8) weeks after the birth of any resulting children, or upon release of gestational carrier from medical care by her treating physician.
(e) Compensation may not be conditioned upon the purported quality or genome-related traits of the gametes or embryos used to create the pregnancy.
(f) That the intended parent(s) agree to accept custody of and to assert full parental rights and responsibilities immediately upon the child's birth, regardless of any impairment to the child.
(g) That the agreement may be terminated at any time by any of the parties upon medical confirmation that the gestational carrier is not pregnant at the time of termination.
(3) Intended parent(s) and the gestational carrier and their spouse, as applicable, shall be represented by separate and independent counsel in any matter relating to a gestational carrier agreement of determination of parental rights pursuant to Section 7 herein.
(4) Doctors, psychologists, attorneys and other professionals may receive compensation for their professional services, such as providing medical services and procedures, legal advice in structuring and negotiating a gestational carrier agreement, determination of parentage through a court proceeding, or counseling.
SECTION 5. (1) In no event shall embryos that were created as a result of medically assisted reproduction techniques have standing to sue or be sued in a court of law. An embryo that was created in a laboratory setting pursuant to in vitro fertilization techniques and that has yet to be implanted shall not be considered a living being with respect to criminal or civil action taken in a court of law; provided, however, that this section shall not preclude any individual from providing a devise or bequest in a will to an embryo(s).
(2) The provisions of this act shall not be construed to abrogate or preclude Section 41-41-45.
SECTION 6. Gestational carrier agreement. (1) Prior to engaging in a gestational carrier agreement, a binding and enforceable contract may be made between the intended parent(s) and the gestational carrier. A contract for a gestational carrier shall not be binding and enforceable unless the gestational carrier is twenty-one (21) years of age or older and the intended parent(s) is twenty-one (21) years of age or older.
(2) A gestational carrier contract shall include the following provisions:
(a) The intended parent(s) shall be the sole source of consent with respect to medical decisions regarding the child carried by the gestational carrier, with due consideration to the health of the gestational carrier. The intended parent(s) shall be consulted with during all aspects of the pregnancy with the surrogate's treating physician. The gestational carrier shall be the sole source of consent with regard to medical decisions which affect her health, whether related to the pregnancy or otherwise.
(b) The gestational carrier agrees to submit to reasonable medical evaluation and treatment and to adhere to reasonable medical instructions about her prenatal health.
(c) The gestational carrier agrees to relinquish any parental rights and to proceed with pre-birth proceedings prescribed under Section 7 of this act.
(d) The intended parent(s) agrees to accept custody of and to assume full parental rights and responsibilities for the child immediately upon the child's birth, regardless of any impairment of the child.
SECTION 7. Judicial determination of parentage. (1) Before the birth of a child conceived by assisted reproduction under a gestational carrier agreement, a party to the agreement may commence a proceeding in chancery court for an order or judgment:
(a) Declaring that each intended parent is a legal parent of the child and ordering that parental rights and duties vest immediately on the birth of the child exclusively in each Intended Parent;
(b) Declaring that the gestational carrier and the gestational carrier's spouse or former spouse, if any, are not the legal parents of the child;
(c) Declaring that the court record is not open to inspection to protect the privacy of the child and the parties; and
(d) For other relief the court determines necessary and proper.
(2) All Parties to the gestational carrier agreement must join in such proceeding.
SECTION 8. Disposition of eggs, sperm or embryos. (1) The contributing patient and the treating physician shall enter into a written agreement that provides for the disposition of the patient's eggs, sperm and embryos in the event of a divorce, the death of a spouse or any other unforeseen circumstance.
(2) Absent a written agreement, any remaining eggs or sperm shall remain under the control of the party who contributes the eggs or sperm.
(3) Absent a written agreement, decision-making authority regarding the disposition of embryos shall reside jointly with the person(s) who contributed gametes used to produce the embryo(s) or the person(s) who are then privy to disposition rights with regard to such embryo(s).
(4) Absent a written agreement, in the case of the death of one (1) member of the persons who contributed gametes which produced embryo(s), the embryo(s) shall remain under the control of the surviving contributor.
SECTION 9. Section 93-17-5, Mississippi Code of 1972, is amended as follows:
93-17-5. (1) There shall be made parties to the proceeding by process or by the filing therein of a consent to the adoption proposed in the petition, which consent shall be duly sworn to or acknowledged and executed only by the following persons, but not before seventy-two (72) hours after the birth of the child:
(a) The parents, or parent, if only one (1) parent, though either be under the age of twenty-one (21) years;
(b) If both parents are dead, then any two (2) adult kin of the child within the third degree computed according to the civil law; if one of such kin is in possession of the child, he or she shall join in the petition or be made a party to the suit; or
(c) The guardian ad litem of an abandoned child, upon petition showing that the names of the parents of the child are unknown after diligent search and inquiry by the petitioners. In addition to the above, there shall be made parties to any proceeding to adopt a child, either by process or by the filing of a consent to the adoption proposed in the petition, the following:
(i) Those persons having physical custody of the child, except persons who are acting as foster parents as a result of placement with them by the Department of Child Protection Services of the State of Mississippi.
(ii) Any person to whom custody of the child may have been awarded by a court of competent jurisdiction of the State of Mississippi.
(iii) The agent of the Department of Child Protection Services of the State of Mississippi that has placed a child in foster care, either by agreement or by court order.
(2) The consent may also be executed and filed by the duly authorized officer or representative of a home to whose care the child has been delivered. The child shall join the petition by the child's next friend.
(3) If consent is not filed, process shall be had upon the parties as provided by law for process in person or by publication, if they are nonresidents of the state or are not found therein after diligent search and inquiry, the court or chancellor in vacation may fix a date in termtime or in vacation to which process may be returnable and shall have power to proceed in termtime or vacation. In any event, if the child is more than fourteen (14) years of age, a consent to the adoption, sworn to or acknowledged by the child, shall also be required or personal service of process shall be had upon the child in the same manner and in the same effect as if the child were an adult.
(4) This section shall not apply to parents or children subject to the Mississippi Gestational Carrier, Surrogacy and In Vitro Child and Parent Act.
SECTION 10. Section 93-17-6, Mississippi Code of 1972, is amended as follows:
93-17-6. (1) Any person who would be a necessary party to an adoption proceeding under this chapter and any person alleged or claiming to be the father of a child born out of wedlock who is proposed for adoption or who has been determined to be such by any administrative or judicial procedure (the "alleged father") may file a petition for determination of rights as a preliminary pleading to a petition for adoption in any court which would have jurisdiction and venue of an adoption proceeding. A petition for determination of rights may be filed at any time after the period ending thirty (30) days after the birth of the child. Should competing petitions be filed in two (2) or more courts having jurisdiction and venue, the court in which the first such petition was properly filed shall have jurisdiction over the whole proceeding until its disposition. The prospective adopting parents need not be a party to the petition. Where the child's biological mother has surrendered the child to a home for adoption, the home may represent the biological mother and her interests in this proceeding.
(2) The court shall set this petition for hearing as expeditiously as possible allowing not less than ten (10) days' notice from the service or completion of process on the parties to be served.
(3) The sole matter for determination under a petition for determination of rights is whether the alleged father is the natural father of the child based on Mississippi law governing paternity or other relevant evidence.
(4) If the court determines that the alleged father is not the natural father of the child, he shall have no right to object to an adoption under Section 93-17-7.
(5) If the court determines that the alleged father is the child's natural father and that he objects to the child's adoption, the court shall stay the adoption proceedings to allow the filing of a petition to determine whether the father's parental rights should be terminated pursuant to Section 93-15-119, or other applicable provision of the Mississippi Termination of Parental Rights Law.
(6) If a petition for the termination of parental rights is filed and, after an evidentiary hearing, the court does not terminate the father's parental rights, the court shall set the matter as a contested adoption as provided in Section 93-17-8.
(7) A petition for determination of rights may be used to determine the rights of alleged fathers whose identity is unknown or uncertain. In such cases the court shall determine what, if any, notice can be and is to be given those persons. Determinations of rights under the procedure of this section may also be made under a petition for adoption.
(8) Petitions for determination of rights shall be considered adoption cases and all subsequent proceedings such as a contested adoption under Section 93-17-8 and the adoption proceeding itself shall be portions of the same file.
(9) Service of process in the adoption of a foreign born child shall be governed by Section 93-15-107(4).
(10) This section shall not apply to parents or children subject to the Mississippi Gestational Carrier, Surrogacy and In Vitro Child and Parent Act.
SECTION 11. Section 93-17-13, Mississippi Code of 1972, is amended as follows:
93-17-13. (1) A final decree of adoption shall not be entered before the expiration of six (6) months from the entry of the interlocutory decree except (a) when a child is a stepchild of a petitioner or is related by blood to the petitioner within the third degree according to the rules of the civil law or in any case, including in cases subject to the Mississippi Gestational Carrier, Surrogacy and In Vitro Child and Parent Act, in which the chancellor in the exercise of his discretion shall determine from all the proceedings and evidence in said cause that the six-month waiting period is not necessary or required for the benefit of the court, the petitioners or the child to be adopted, and shall so adjudicate in the decree entered in said cause, in either of which cases the final decree may be entered immediately without any delay and without an interlocutory decree, (b) when the child has resided in the home of any petitioner prior to the granting of the interlocutory decree, in which case the court may, in its discretion, shorten the waiting period by the length of time the child has thus resided, or (c) when an adoption in a foreign country is registered under Article 9 of this chapter, the Mississippi Registration of Foreign Adoptions Act.
(2) The final decree shall adjudicate, in addition to such other provisions as may be found by the court to be proper for the protection of the interests of the child; and its effect, unless otherwise specifically provided, shall be that (a) the child shall inherit from and through the adopting parents and shall likewise inherit from the other children of the adopting parents to the same extent and under the same conditions as provided for the inheritance between brothers and sisters of the full blood by the laws of descent and distribution of the State of Mississippi, and that the adopting parents and their other children shall inherit from the child, just as if such child had been born to the adopting parents in lawful wedlock; (b) the child and the adopting parents and adoptive kindred are vested with all of the rights, powers, duties and obligations, respectively, as if such child had been born to the adopting parents in lawful wedlock, including all rights existing by virtue of Section 11-7-13, Mississippi Code of 1972; provided, however, that inheritance by or from the adopted child shall be governed by paragraph (a) above; (c) that the name of the child shall be changed if desired; and (d) that the natural parents and natural kindred of the child shall not inherit by or through the child except as to a natural parent who is the spouse of the adopting parent, and all parental rights of the natural parent, or parents, shall be terminated, except as to a natural parent who is the spouse of the adopting parent. Nothing in this chapter shall restrict the right of any person to dispose of property under a last will and testament.
(3) A final decree of adoption shall not be entered until a court-ordered home study is satisfactorily completed, if required in Section 93-17-11.
SECTION 12. This act shall take effect and be in force from and after July 1, 2025.
