Historically, if a couple in Louisiana was unable to have children, they unfortunately had very few to no options when it came to the topic of surrogacy. Any surrogacy or “gestational carrier” contracts were unenforceable in Louisiana.
That was until August 1, 2016, with the introduction of HB1102. The bill’s intended purpose was “to regulate gestational surrogacy agreements.”
When it was signed into law with an effective date of August 1, 2016, this bill became Act No. 494.
So what does this act do, and what does it mean for couples looking for other options?
Act No. 494 Basics
The Louisiana 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 means that the act restricts enforceable gestational surrogacy agreements in two ways:
- Restricting these agreements to those in which a married couple engages a gestational surrogate, and
- Requiring the married couple also must use their “own gametes” (i.e. sperm and egg)
Who does this act exclude?
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.”
Additionally, this legislation does not allow for contracts regarding “genetic gestational carriers.” This is the process by which a woman carries and gives birth to a child using her own egg and then agrees to relinquish custody and all rights to that child, and this is not allowed by HB1102.
What are the other requirements?
There are many other requirements for couples and their surrogate who wish to create a legally enforceable contract this way. For example, 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 alone must follow many requirements, as well. Some of the requirements include:
- 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
- Must agree to a post-birth counseling session
For the intended parents, they should do the following:
- 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
- Must agree to accept custody and assume full parental rights to the child, regardless of any impairment
- Must agree to be recognized as the legal parents of the child
Both the gestational carrier (and her spouse if she is married) and the intended parents have the right to seek judicial approval of the gestational carrier contract prior to the utero embryo transfer.
Contact Kristen-Stanley Wallace for more information
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. You can review the entirety of Act No. 494 here.
For more information about Act No. 494 or other family law issues in Louisiana, feel free to contact our offices at Stanley-Wallace Law.