Surrogacy in Massachusetts: Legal Issues Intended Parents Need to Know (And Why Pirates and Surrogacy Go Together)

As far as surrogacy law goes, Massachusetts has been a leader in the field. (Yay, Massachusetts!)  Massachusetts has some of the earliest court decisions authorizing pre-birth orders for gestational surrogacy. 

However (at the time I’m writing this), Massachusetts does not have a surrogacy law on the books. This means that the laws that have developed in Massachusetts have come from other people’s court cases.  Lawyers call this “case law.”  

What does this mean for intended parents in Massachusetts? I talked to my colleague, Massachusetts attorney Bruce Hale, from Modern Family Law in the Boston area, who handles a lot of these cases. Bruce wants you to know about a landmark 2001 court case (it’s called Culliton v. Beth Israel Deaconess Medical Center, if you want to look it up). This case solidified the authority of the Massachusetts Probate and Family Courts to grant pre-birth orders (known as “PBOs”).  

Because of this Culliton case, here’s how the process works to get a PBO in Massachusetts: A petition (fancy legal term for paperwork) is filed with the Probate and Family Court. The paperwork describes to the Court who the legal parents of the child to be born should be (meaning the “intended parents” not the gestational carrier). The Department of Public Health (DPH) must be notified before the petition is filed, because DPH is in charge of birth certificates in Massachusetts. It’s up to the judge as to whether to require a hearing, so be prepared in case the judge does require it. The length of time that it takes to obtain a pre-birth order of parentage will vary by court and by case because Massachusetts does not have a law specifying a time frame for the process.

Like the other New England states, Massachusetts is friendly to different types of family formations. Gay intended parents, single intended parents, unmarried intended parents—you are all welcome to build your families in Massachusetts!  

This wasn’t always the case in Massachusetts—until recently, unmarried parents would run into roadblocks with trying to get an appropriate birth certificate. Bruce pointed out that a 2016 court case changed all that and now unmarried parents have the same rights as married couples to build their families via assisted reproduction (if you want to look it up, the court case is called Partanen v. Gallagher). 

How is this different from other New England states? Well, New Hampshire, Maine, Vermont and Connecticut have actual laws on the books governing the process. (As an aside—I’m super proud to have written the law in New Hampshire!) With a specific law, there are set rules for how surrogacy must take place, so there’s less leeway for the judge to set his/her own procedural rules. For example, in New Hampshire, the law gives the judge 30 days to issue the parentage order (NH’s version of the PBO) and only allows for hearings to be held in limited circumstances. These are big differences from the Massachusetts process.

Rhode Island does not have a specific law, but there is an ongoing effort to change that soon.  And in Massachusetts, this may also change thanks to efforts from attorneys such as Bruce and advocacy groups such as RESOLVE New England.

On a more personal note, Bruce realizes how lucky he is to get to help people achieve their dream of becoming a parent. “I have a set of former clients who put together a story about their child's birth, and my character in the story is a pirate that sails the parents across the sea to find their child. It's really wonderful to have such an impact on people's lives.”  

So pirates and surrogacy—who would have thought they go together so well??!!

If you are an intended parent interested in an initial consult (these are always free), please head over to our appointment scheduling system. We look forward to being part of your family building team! 

If you are looking to become a surrogate in Massachusetts or another New England state, we’d love to talk to you. Please head over to our brief surrogate intake form to schedule some time to talk with us.

And if you are interested in advocating for better laws in Massachusetts, please contact our friends over at RESOLVE New England for more information.


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