SB 264-FN - AS INTRODUCED
2023 SESSION
23-0973
06/05
SENATE BILL 264-FN
AN ACT relative to parentage.
SPONSORS: Sen. Perkins Kwoka, Dist 21; Sen. Soucy, Dist 18; Sen. Rosenwald, Dist 13; Sen. Fenton, Dist 10; Sen. Altschiller, Dist 24; Sen. Watters, Dist 4; Sen. Whitley, Dist 15; Sen. Prentiss, Dist 5; Sen. Chandley, Dist 11; Rep. Simpson, Rock. 33; Rep. Grote, Rock. 24
COMMITTEE: Judiciary
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ANALYSIS
This bill changes the name of the surrogacy chapter to "parentage."
This bill makes several technical changes to the surrogacy chapter.
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Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
23-0973
06/05
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Twenty Three
AN ACT relative to parentage.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 Surrogacy. Amend the chapter title before RSA 168-B:1 to read as follows:
CHAPTER 168-B
[SURROGACY] PARENTAGE
2 Parentage; Definitions. Amend RSA 168-B:1 to read as follows:
168-B:1 Definitions. In this chapter:
I. "Artificial insemination" means the introduction of semen into a [women's] vagina, cervical canal, or uterus through extracorporeal or noncoital means.
II. "Assisted reproduction" means a method of causing pregnancy other than sexual intercourse. The term includes, but is not limited to:
(a) Artificial insemination.
(b) Donation of [eggs] gametes.
(c) Donation of embryos.
(d) In-vitro fertilization and transfer of embryos.
(e) Intracytoplasmic sperm injection.
III. "Compensation" means payment of any reasonable, valuable consideration to [the] a gamete donor, an embryo donor, or a gestational carrier or on their behalf.
IV. "Court," unless otherwise indicated in this chapter, means the probate division of the circuit court in the county where the gestational carrier resides, where the intended parent or parents reside, or where the resulting child is born or is expected to be born.
V. "Donor" means an individual who contributes a gamete or gametes or an embryo or embryos for the purpose of assisted reproduction with no claim or claims to present or future parental rights and obligations to any resulting child.
VI. "Embryo" means the fertilized egg.
VII. "Embryo transfer" means all medical and laboratory procedures that are necessary to effectuate the transfer of an embryo into the uterine cavity.
VIII. "Gamete" means either the ovum (egg) or the spermatozoa (sperm).
IX. "Gestational carrier" means a [woman] person who is neither an intended parent nor a donor, who agrees to become pregnant with a child, to whom [she is not genetically related] such gestational carrier made no genetic contribution, by assisted reproduction and pursuant to a gestational carrier arrangement.
X. "Gestational carrier agreement" means a written contract between the gestational carrier, [her] their spouse or partner, if any, and the intended parent or parents, that sets forth the obligations, rights, and duties of the parties to a gestational carrier arrangement.
XI. "Gestational carrier arrangement" means the process by which a gestational carrier attempts to become pregnant with a child through assisted reproduction using the gamete or gametes or embryo provided by the intended parent or parents and/or donor or donors, which may or may not be genetically related to the intended parent or parents, and to which the gestational carrier has made no genetic contribution, and carry and give birth to such a child with the intention that the child will be solely the legal child of the intended parent or parents.
XII. "Health care provider" means a person who is duly licensed, certified, authorized, or registered under the laws of the state to provide health care, and includes all medical, psychological, counseling, and social work professionals.
XIII. "Intended parent" means a person, married or unmarried, who intends to become a parent of any child that results from a gestational carrier agreement. This term shall include intended mothers, intended fathers, or a combination of both. In the case of a married couple, any reference to an intended parent shall include both spouses for all purposes of this chapter.
XIV. "In vitro fertilization" means all medical and laboratory procedures that are necessary to effectuate the extracorporeal combining of egg and sperm and the resulting fertilization of the egg.
XV. "Mental health consultation" means an in-person or telehealth meeting with a licensed mental health professional for the purposes of educating the participants about the effects and potential consequences of their participation in a gestational carrier arrangement, and of evaluating any potential psychological issues and risks posed by a party to a gestational carrier arrangement, including, but not limited to, the intended parent or parents or the gestational carrier's mental health, external and environmental factors, ability to manage relationships, potential attachment issues, and ability to carry out [his or her] their obligations, rights, and duties under a gestational carrier arrangement.
XVI. "Mental health professional" means an individual who:
(a) Holds a masters or doctoral degree in the field of psychiatry, psychology, counseling, social work, psychiatric nursing, or marriage and family therapy; and
(b) Is duly licensed, certified, authorized, or registered under the laws of a state to practice in the mental health field.
3 Parentage; Parent-Child Relationship. Amend RSA 168-B:2, I - III to read as follows:
I. A person is the parent of a child to whom [she has] they have given birth, except as otherwise provided in this chapter and if the pregnancy was established pursuant to a gestational carrier arrangement.
II. A person is the parent of a child conceived via assisted reproduction if the person, except when acting in the capacity of a donor, consents to the performance of assisted reproduction with intent to parent the resulting child or provides a gamete or gametes or an embryo or embryos for use in the assisted reproduction with the intent to parent the resulting child.
III. A donor is not a parent of a child conceived through assisted reproduction. A donor may bring a petition for non-parentage to affirm that they are not a parent of a child conceived or to be conceived via assisted reproduction. Such a petition may be brought in the court in the county where the donor resides, where the intended parent or parents reside, where the donation took place, or where the resulting child is born or is expected to be born. Such a petition may be brought either before, during, or subsequent to any pregnancy.
4 Parentage; Parent-Child Relationship. Amend RSA 168-B:2, VII(a) to read as follows:
VII.(a) Any person who is a parent pursuant to RSA 168-B:2, II, without the assistance of a gestational carrier (as gestational carrier arrangements are governed by RSA 168-B:12), may petition the court for a parentage order declaring that the intended parent or parents are the sole parents of a child resulting from assisted reproduction. Such a petition may be brought in the court in the county where the intended parent or parents reside, or where the resulting child is born or is expected to be born. Such a petition may be brought either before, during, or subsequent to the pregnancy. The court shall, within 30 days, grant the petition upon a finding that the child was conceived through assisted reproduction as defined in RSA 168-B:1, II, with the use of donor gametes or donor embryos, if applicable, and with consent to the assisted reproduction and the intent to parent. Sworn affidavits demonstrating the same shall be sufficient to permit such a finding and a hearing shall not be required unless the court requires additional information which cannot reasonably be ascertained without a hearing. Parentage orders issued under this paragraph shall conclusively establish or affirm, where applicable, the parent-child relationship.
5 Parentage; Legitimacy. Amend RSA 168-B:3 to read as follows:
168-B:3 Legitimacy. If, under the provisions of this chapter, a parent-child relationship is created between 2 persons, the child shall be considered, for all purposes of law, the legitimate child of the parent. In the absence of specific language to the contrary in a statute or instrument, a legitimated child shall be considered the same as a birth child, issue, or heir of the body for all purposes of the law.
6 Parentage; Compliance. Amend RSA 168-B:4 to read as follows:
168-B:4 [Effect of Noncompliance] Substantial Compliance. [Noncompliance] Substantial compliance with the requirements of this chapter [shall not affect the determination of parenthood] is sufficient to allow for a determination of parentage under this chapter.
7 Parentage; Parental Status of a Gestational Carrier and Their Spouse or Partner, If any. Amend RSA 168-B:5 to read as follows:
168-B:5 Parental Status of a Gestational Carrier and [Her] Their Spouse or Partner, If Any. Neither a gestational carrier nor [her] their spouse or partner, if any, shall be a parent of a child conceived as a result of assisted reproduction and a gestational carrier arrangement.
8 Parentage; Rights and Responsibilities of Intended Parent. Amend RSA 168-B:8 to read as follows:
168-B:8 Rights and Responsibilities of Intended Parent. An intended parent of any child resulting from assisted reproduction and a gestational carrier arrangement shall meet each of the following requirements prior to any medical procedures to impregnate the gestational carrier:
I. [He, she, or they] They have completed a mental health consultation.
II. [He, she, or they] They have undergone legal consultation with independent legal counsel regarding the terms of the gestational carrier agreement and have been advised of the potential legal consequences of the gestational carrier agreement.
9 Parentage; Eligibility of a Gestational Carrier. Amend RSA 168-B:9 to read as follows:
168-B:9 Eligibility of a Gestational Carrier. Prior to any medical procedures to impregnate the gestational carrier, a woman, intending to be a gestational carrier, shall meet all of the following requirements:
I. [She is] They are at least 21 years of age.
II. [She has given] They gave birth to at least one child.
III. [She has] They completed a physical medical evaluation, [in substantial conformance with the guidelines set forth by the American Society for Reproductive Medicine,] relating to the anticipated pregnancy.
IV. [She has] They completed a mental health consultation.
V. [She, and her] They, and their spouse or partner, if any, have undergone legal consultation with independent legal counsel regarding the terms of the gestational carrier agreement and have been advised of the potential legal consequences of the gestational carrier agreement.
10 Parentage; Enforceability of Gestational Carrier Agreement. Amend RSA 168-B:10 to read as follows:
168-B:10 Enforceability of Gestational Carrier Agreement. To best protect all parties entering into a gestational carrier arrangement, a gestational carrier agreement shall meet the minimum requirements under RSA 168-B:11. A gestational carrier agreement that substantially conforms to these requirements is a legal contract that is presumed to be valid and enforceable and is legally enforceable by the court. The parties to a gestational carrier agreement may petition the court for an order affirming the status of a gestational carrier agreement. The court shall issue such an order upon a finding that the agreement substantially meets the minimum requirements under RSA 168-B:11.
11 Parentage; Requirements for a Gestational Carrier Agreement. Amend RSA 168-B:11, III to read as follows:
III. All parties shall be represented by legal counsel regarding the gestational carrier agreement and the gestational carrier and [her] their spouse or partner, if any, shall have legal counsel that is separate and independent from the legal counsel for the intended parents.
12 Parentage; Requirements for a Gestational Carrier Agreement. Amend RSA 168-B:11, IV(e) to read as follows:
(e) [The express written agreement of all parties as to how]Acknowledgment by the gestational carrier, and their spouse or partner, if any, that, if the gestational carrier breaches a provision of this chapter or of the gestational carrier agreement, and a court of competent jurisdiction determines that such a breach causes harm to the resulting child, the gestational carrier [will cover her potential liability] may be held financially responsible for such harm, pursuant to RSA 168-B:18.
13 Parentage Orders. Amend RSA 168-B:12, I and II to read as follows:
168-B:12 Parentage Orders.
I. Any of the parties to a gestational carrier agreement may petition the court for a parentage order declaring that the intended parent or parents are the sole parents of a child resulting from assisted reproduction and a gestational carrier arrangement, and that the gestational carrier and her spouse or partner, if any, are not the parent or parents of such a child. Such a petition may be brought in the court in the county where the gestational carrier resides, where the intended parent or parents reside, where the transfer of embryos takes place, where at least one of the required legal or mental health consultations took place, or where the resulting child is born or is expected to be born. Such a petition may be brought either before, during, or subsequent to the pregnancy. The court shall, within 30 days, grant the petition upon a finding that the parties have substantially complied with the requirements of this chapter pertaining to the execution of a gestational carrier agreement. Sworn affidavits demonstrating substantial compliance shall be sufficient to permit such a finding and a hearing shall not be required unless the court requires additional information which cannot reasonably be ascertained without a hearing. In the absence of such substantial compliance, the court may in its discretion issue such parentage order upon a finding that the parties intended to enter into a gestational carrier arrangement and the best interests of the child would be met by permitting parentage to be established in this manner. Such parentage orders issued under this section shall conclusively establish or affirm, where applicable, the parent-child relationship.
II. Upon the request of any party, such parentage order shall direct that the certificate of birth name the intended parent or parents as the sole parent or parents of the resulting child and that such a certificate of birth shall not name the gestational carrier or [her] their spouse or partner, if any, as the parent or parents of the resulting child.
14 Parentage; Marriage or Partnership of a Gestational Carrier During the Gestational Carrier Arrangement. Amend RSA 168-B:13 to read as follows:
168-B:13 Marriage or Partnership of a Gestational Carrier During the Gestational Carrier Arrangement. The marriage, [or] partnership, separation, or divorce of [a gestational carrier after she executes a] any party to a gestational carrier agreement does not affect the validity or the terms of the gestational carrier agreement[, and her spouse or partner shall not be a parent of the resulting child].
15 Parentage; Intestate and Testate Succession. Amend the introductory paragraph RSA 168-B:14 to read as follows:
168-B:14 Intestate and Testate Succession. Subject to the provisions of RSA 168-B:15, a child shall be considered a child only of [his or her] their parent or parents and the parent or parents shall be considered the parent or parents of the child, as determined for the purposes of:
16 Parentage; Remedies. Amend RSA 168-B:18, V and VI to read as follows:
168-B:18 Remedies.
V. A breach of a provision of this chapter and/or of the gestational carrier agreement by the gestational carrier, after the gestational carrier is impregnated, shall not relieve the gestational carrier of [her] their obligations imposed by this chapter.
VI. A breach of a provision of this chapter and/or of the gestational carrier agreement by the gestational carrier, after the gestational carrier is impregnated, shall not relieve such intended parent or parents of the intended parent's or parents' parental rights or responsibilities to the child, unless it is determined by genetic testing, that the child is the genetic child of the gestational carrier.
[VI] VII. If the gestational carrier breaches a provision of this chapter and/or of the gestational carrier agreement, and such a breach causes harm to the resulting child, the gestational carrier may be liable for payment of the resulting child's medical expenses not otherwise covered by the intended parent's or parents' insurance.
17 Effective Date. This act shall take effect 60 days after its passage.
23-0973
Revised 1/30/23
SB 264-FN- FISCAL NOTE
AS INTRODUCED
AN ACT relative to parentage.
FISCAL IMPACT: [ X ] State [ ] County [ ] Local [ ] None
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STATE: | FY 2023 | FY 2024 | FY 2025 | FY 2026 |
Appropriation | $0 | $0 | $0 | $0 |
Revenue | $0 | $0 | $0 | $0 |
Expenditures | $0 | Indeterminable Increase | Indeterminable Increase | Indeterminable Increase |
Funding Source: | [ X ] General [ ] Education [ ] Highway [ ] Other | |||
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METHODOLOGY:
This bill changes the name of the surrogacy chapter from "Surrogacy" to "Parentage" and makes several technical changes to the chapter. The Judicial Branch indicates the amendment to RSA 168-B:2, III would create a new type of claim that may be brought in court by a donor to affirm that they are not the parent of a child conceived via assisted reproduction. The Branch assumes this will result in an increase in the number of superior court cases but is unable to predict how many additional cases will be filed. The Branch assumes none of the other changes contained in the bill will have a fiscal impact.
It is assumed that any fiscal impact would occur after FY 2023.
AGENCIES CONTACTED:
Judicial Branch