Prior to August 1, 2016, couples who were unable to have children had very few to no options when it came to the topic of surrogacy. Any surrogacy or “gestational carrier” contracts were unenforceable in Louisiana prior to August 1, 2016. Enter HB1102. HB1102’s stated purpose is “to regulate gestational surrogacy agreements” and the legislature found “that it is desirable to assure that the intended parents of every child born through the use of assisted reproductive technology be legal and biological parents of the child.” This bill, which was signed into law as Act No. 494 with an effective date of August 1, 2016, restricts enforceable gestational surrogacy agreements to those in which a married couple engages a gestational surrogate and the married couple also must use their “own gametes” (i.e. sperm and egg). Thus, under the terms of this new legislation, same sex couples do not fall within the definition of those married couples who can legally engage a gestational surrogate. The legislation states that “compelling state interests justify provisions for filiation to be recognized by a court upon proof that the child is genetically related to both parents.” This legislation further makes clear that contracts regarding “genetic gestational carriers” (defined as the process by which a woman attempts to carry and give birth to a child using her own egg and then agrees to relinquish custody and all rights to that child) is an absolute nullity.
Act No. 494 provides a myriad of requirements for such a contract to be legally enforceable. Some examples of these requirements include that the contract must be in writing, signed by the gestational carrier, and her spouse if she is married, and both of the intended parents. The gestational carrier must be between the ages of 25 and 35, must have already given birth to at least one child, must agree to reasonable medical evaluation and treatment during the pregnancy, must have undergone at least two counseling sessions, and agree to a post-birth counseling session. The intended parents must agree and recognize that the gestational surrogate has the sole authority to make medical decisions during the term of the pregnancy as if she was a woman carrying her own biological child. Further, the intended parents must agree to accept custody and assume full parental rights to the child, regardless of any impairment, agree to be recognized as the legal parents of the child, among other requirements. Further, either the gestational carrier (and her spouse if she is married) or the intended parents, may seek judicial approval of the gestational carrier contract prior to the utero embryo transfer.
While this new act offers new options for some married couples, opponents of the act criticize its limited scope, not only for non-heterosexual couples, but also for some heterosexual couples, such as those with no viable gametes. To review the entirety of Act No. 494, please see: http://www.legis.la.gov/legis/ViewDocument.aspx?d=1011810.