AN ACT CONCERNING ASSISTED REPRODUCTION AND GESTATIONAL AGREEMENTS
January 12, 2001
TABLE OF SECTIONS
PART 1. GENERAL PROVISIONS
SEC. 2. Scope of act. Waiver prohibited
SEC. 3. Parental status of donor.
SEC 5. Confidentiality of records.
SEC. 6. Parenthood of child of assisted reproduction.
SEC. 7. Status of child born of assisted reproduction
SEC. 8. Status of child determined by jurisdiction birth
SEC. 9. Consent to assisted reproduction services
Consent of donor.SEC. 11. Revocation of consent. Effect of dissolution of marriage or death
PART 2. GESTATIONAL AGREEMENTS
SEC. 14. Petition and hearing. Order approving gestational agreement
SEC. 15. Required findings to approve a gestational agreement
SEC. 16. Gestational agreement: miscellaneous provisions
SEC. 17. Exclusive, continuing jurisdiction
SEC. 18. Termination of gestational agreement
SEC. 19. Parentage under approved gestational agreement
SEC. 20. Nonapproved gestational agreement
PART 3. CONFORMING PROVISIONS
SEC. 21. Injury or risk of injury to, or impairing morals of, children. sale of children.
The ideas and conclusions set forth in this draft, including the proposed statutory language and comments, have not been passed upon by the Connecticut Law Revision Commission or the Commission's Assisted Reproductive Technology Committee. They do not necessarily reflect the views of the Commission and its members and the Committee, its members, reporter, and advisors. Language proposed in this discussion draft may not be used to ascertain the intent or meaning of any promulgated final statutory language.
AN ACT CONCERNING ASSISTED REPRODUCTION AND GESTATIONAL AGREEMENTS
January 12, 2001
PART 1. GENERAL PROVISIONS
Section 1. Definitions. (NEW) In sections 1 to 20, inclusive, of this act:
(1) "Assisted reproduction" means a method, other than sexual intercourse, of causing pregnancy. The term includes, but is not limited to:
(A) artificial insemination;
(B) transfer of gametes or embryos; and
(C) in-vitro fertilization.
(2) "Child" means an individual of any age whose parentage may be
determined under this act.
(3) "Donor" means an individual who produces eggs or sperm used for assisted reproduction, whether or not for consideration. The term does not include:
(A) a husband who provides sperm, or a wife who provides eggs, to be used for assisted reproduction by the wife;
(B) an unmarried man who provides his sperm to be used for assisted reproduction by an unmarried woman who both intend to be parents of the resulting child; or
(C) a woman who gives birth to a child by means of assisted reproduction, except as otherwise provided in sections 13 to 20, inclusive, of this act;
(4) "Gestational agreement" is an agreement described in section 13 of this act.
(5) "Gestational carrier" means the woman who agrees, pursuant to a gestational agreement, to bear a child for an intended parent.
(6) "Embryo transfer" means to place an embryo into the uterus of a woman intended to gestate the embryo.
(7) "Gametes" means eggs or sperm.
(8) "Health care provider" means a health care provider as defined in
section 20-7f of the general statutes, who provides assisted reproduction services or facilitates gamete or embryo donation.
(9) "Intended parent" means one or two individuals who enter into a gestational agreement providing that the individual will be parent of a child born to a gestational carrier pursuant to a gestational agreement approved under this act, whether or not the intended parent has a genetic relationship with the child.
(10) "Record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.
Sec. 2. Scope of act. Waiver prohibited. (NEW) (a) This act does not apply to the birth of a child conceived by means of sexual intercourse.
(b) The provisions of section 1 to 20, inclusive, of this act may not be waived.
(c) Except as provided in this act, this act does not create, enlarge, or diminish parental rights and duties as established by other law of this state.
Sec. 3. Parental status of donor.
(NEW) A donor is not a parent of a child conceived by means of assisted reproduction with the donor’s gametes. Neither a donor nor any person claiming by or through a donor has a right or interest in a child or the estate of a child born by means of assisted reproduction. A child born by means of assisted reproduction is not an heir of a donor.
Sec. 4. Violation of the act. (NEW) Violation of the act by a health care provider shall be a matter of discipline by the Department of Public Health under sections 19a-14 and 19a-17 of the general statutes.
Sec. 5. Confidentiality of records. (NEW) (a) No health care provider may assist a woman to become pregnant through assisted reproduction unless the health care provider maintains the following information about the donor: family medical and mental health history; substance abuse history; and results of any genetic testing done as part of donor screening. All such information is confidential and subject to inspection, in a manner that does not disclose the identity of the donor, only by a potential recipient of gametes of the donor, by the parent or guardian of a child born as the result of assisted reproduction using the gametes of the donor, and by the child when 18 years of age or older.
(b) A donor shall select to enter a non-anonymous donor program or an anonymous donor program. Recipients of donor gametes may choose to receive gametes from either the non-anonymous donor program or the anonymous donor program. In the non-anonymous donor program, the identity of the donor is available from the health care provider to the parent or guardian of the child born as the result of assisted reproduction and to the child when 18 years of age or older. In the anonymous donor program, the identity of the donor is confidential, not available to the parent or guardian of the child born as the result of assisted reproduction and to the child. Donor and potential recipients of donor gametes shall receive adequate counseling by the health care provider regarding the implications of using the non-anonymous and anonymous programs.
(c) The health care provider shall, before receiving eggs, sperm, or embryos for donation, record the address of the donor and request the donor to keep a current address on file with the health care provider.
(c) The provisions concerning maintenance and inspection of records of the identity of donors do not apply to donors of eggs and sperm collected before the effective date of this act.
(d) The Department of Public Health shall, pursuant to chapter 54, adopt regulations to implement the provisions of this section.
Sec. 6. Parenthood of child of assisted reproduction.
(NEW) (a) This section does not apply to the parentage of a child conceived as the result of a gestational agreement as provided in section 13 of this act.(b) A woman who gives birth to a child by means of assisted reproduction is the mother of a resulting child.
(c) A husband, who provides his sperm for, or consents to, assisted reproduction by his wife as provided in section 9, is the father of a resulting child born to his wife. Failure of a husband to sign the consent required by subsection (b) of section 9, before or after birth of the child, does not preclude a finding that the husband is the father of a child born to his wife if the wife and husband openly treated the child as their own.
(d) An unmarried man, who provides his sperm for assisted reproduction by an unmarried woman with the intent that they both be the parents of the resulting child, is the father of a resulting child born to the woman if the man and woman have signed the consent provided in section 9.
Sec. 7. Status of child born of assisted reproduction. A child born as a result of assisted reproduction is, in all respects, the child of the mother and father described in section 6 or, in the case of a gestational agreement, the child of the intended parent.
Sec. 8. Status of child determined by jurisdiction of birth. (a) This section does not apply to a gestational agreement as provided in section 13.
(b) A child conceived as a result of assisted reproduction performed in Connecticut and born in another jurisdiction shall have his or her status determined by the law of the other jurisdiction unless the mother of the child resides in Connecticut both at the time of conception and of birth of the child.
(c) If a child is conceived by assisted reproduction in another jurisdiction but is born in Connecticut to a woman who, at the time of conception, was not a resident of Connecticut, but is a resident at the time of the birth of the child, the child shall have the same status as is provided in section 7, even if the provisions of section 9 may not have been complied with.
Sec. 9. Consent to assisted reproduction services. (NEW) (a) This section does not apply to a donor.
(b) No health care provider may provide services for assisted reproduction involving donor eggs, sperm or embryos unless (1) the individual receiving the services has been given information about the implications of the use of assisted reproduction, both orally and in writing, sufficient to allow the individual to make an informed decision, (2) the individual has been offered the counseling by a mental health professional qualified to practice in the area of reproductive health, about the social and psychological implications of assisted reproduction on participants, and (3) the individual has signed a record consenting to the procedures to be employed.
(c) If an individual declines the counseling offered in subsection (b), the provider may not provide assisted reproduction services unless the individual signs a record stating that the individual has been offered counseling and has elected not to receive it.
(d) If the use of assisted reproduction is by a married woman, the provisions of subsection (b) also apply to her husband and the consent must be signed by both the woman and her husband.
(e) If an unmarried man provides his sperm to be used for assisted reproduction by an unmarried woman and both intend to be parents of a resulting child, the provisions of subsection (b) also apply to the man and the consent must be signed by both the man and the woman.
(d) If the assisted reproduction services involve embryo creation or transfer, the record consent required in subsection (b) shall also contain:
(1) a description of the intended use of the embryos;
(2) information regarding the number of embryos to be transferred and the risk of multiple births;
(3) direction for the use and disposition of the embryos in the event of divorce, illness, death, or other change in circumstances designated by the parties; and
(5) the time at which, and the conditions under which, embryos will be deemed abandoned and direction for disposal of the abandoned embryos.
Sec. 10. Consent of donor. No health care provider may facilitate gamete or embryo donation unless (1) the donor has been given information about the medical, psychological, and social implications of the use of assisted reproduction, both orally and in writing, sufficient to allow the donor to make an informed decision and (2) the donor has signed a record consenting to the procedures to be employed.
Revocation of consent. Effect of dissolution of marriage or death. (NEW) (a) This section does not apply to the consent of a donor signed pursuant to section 10 of this act and to a gestational agreement as provided in section 13.
(b) An individual who signed a consent to assisted reproduction pursuant to section 9 may revoke the consent in a record at any time before transfer of eggs, sperm, or embryos.
(c) If individuals who signed a consent pursuant to section 9 are married and their marriage is dissolved before transfer of eggs, sperm, or embryos, the former husband is not the father of the resulting child unless the former husband consented in a record that if assisted reproduction were to occur after a dissolution of the marriage, the former husband would be the father of the child.
(d) If a husband who signed a consent pursuant to section 9 dies before transfer of eggs, sperm, or embryos, the deceased husband is not the father of the resulting child unless the deceased husband consented in a record that if assisted reproduction were to occur after death, the deceased husband would be the father of the child. If an unmarried man who signed a consent pursuant to section 9 dies before transfer of eggs, sperm, or embryos, the deceased man is not the father of the resulting child unless the deceased man consented in a record that if assisted reproduction were to occur after death, the deceased man would be the father of the child.
Sec. 12. Egg donation. (NEW) An agreement to pay consideration to an egg donor in exchange for her eggs shall not be enforceable unless it is reasonable, based on the donor’s time, effort, risk, and inconvenience.
PART 2. GESTATIONAL AGREEMENTS.
Sec. 13. Gestational agreement. (NEW) (a) A prospective gestational carrier, her husband if she is married, and an intended parent may enter into a gestational agreement that provides that:
(1) The prospective gestational carrier agrees to pregnancy by means of assisted reproduction by a health care provider;
(2) the prospective gestational carrier and her husband, if she is married, relinquish all rights and duties as parents of a child born pursuant to a gestational agreement approved under section 14 of this act; and
(3) each intended parent becomes the parent of the child.
(b) If the intended parents are married, both spouses must be parties to the gestational agreement.
(c) The gestational agreement must be a record, signed by the parties.
(d) For purposes of this act, a gestational agreement is not valid unless approved under section 14 of this act.
Sec. 14. Petition and hearing. Order approving gestational agreement. (NEW) (a) The intended parent and the prospective gestational carrier may file a petition to approve a gestational agreement in the Probate Court in the probate district in which one of them resides. The gestational carrier's husband, if she is married, must join in the petition. A copy of the agreement must be attached to the petition.
(b) A petition to approve a gestational agreement may not be maintained unless either the gestational carrier or intended parent has continuously been a resident of Connecticut for the preceding ninety days.
(c) On receipt of the petition, the court shall set a hearing within thirty days and give such notice as it may direct to the gestational carrier, her husband, the intended parents, and such other interested parties as the court may direct. The court shall hold a hearing on the petition and, if the requirements of section 15 of this act are satisfied, may enter an order approving the gestational agreement and declaring that the intended parent will be the parent of a child born during the term of the agreement.
(d) The court shall close all proceedings held under this section. All records of the proceedings are confidential and subject to inspection only by the parties to the agreement and by the guardian of the child born to the gestational carrier. The court shall, on request of a child 18 years of age or older born to a gestational carrier who is genetically related to the child, release to the child the identity of the gestational carrier.
Sec. 15. Required findings to approve a gestational agreement. (NEW) The court may not issue an order under section 14 of this act unless it finds that:
(1) The prospective gestational carrier, her husband, if she is married, and an intended parent have entered into a record agreement that provides that the gestational carrier agrees to conceive by means of assisted reproduction, that the gestational carrier and her husband, if she is married, relinquish all rights and duties as a parent of a child born during the term of the agreement, and that the intended parent becomes the parent of the resulting child;
(2) the agreement provides that the gestational carrier can attempt to achieve pregnancy for no more than one year from the date of approval of the agreement by the court;
(3) the residence requirement of section 14 has been satisfied and the parties have submitted to jurisdiction of the court;
(4) the intended parent and the prospective gestational carrier are twenty-one years of age or older;
(5) if the intended parent is married, the spouse of the intended parent is a party to the gestational agreement as an intended parent;
(6) the gestational agreement does not limit the right of the gestational carrier to make decisions regarding her health or that of the embryo or fetus;
(7) the agreement under review by the court is the entire agreement between the parties;
(8) the parties understand that they have a right to separate legal counsel, and, if a party proceeds without legal counsel, that party has knowingly waived the right to counsel;
(9) the parties understand that it is recommended that the parties have received mental health counseling, by a mental health professional qualified to practice in the area of reproductive medicine, about the social and psychological implications of being a gestational carrier and an intended parent and, if a party has entered the agreement without the benefit of such counseling, the party has knowingly declined counseling;
(10) adequate provision has been made for all reasonable health-care expense associated with the gestational agreement until the birth of the child, including responsibility for those expenses if the agreement is terminated;
(11) consideration, if any, paid to the prospective gestational carrier is reasonable; and
(12) all parties have voluntarily entered into the agreement and understand its terms.
Sec. 16. Gestational agreement: miscellaneous provisions. (NEW) (a) A gestational agreement that is the basis for an order under this act may provide for payment of reasonable consideration, based only on the gestational carrier’s time, effort, risk, and inconvenience.
(b) After the entry of an order under section 14, marriage of the gestational carrier does not affect the effectiveness of the agreement, and her husband’s consent to the gestational agreement is not required, nor is her husband father of the resulting child.
(c) If, under the agreement, the intended parents are required to pay the gestational carrier’s legal fees, counsel for the gestational carrier shall represent the interests of the gestational carrier only.
(d) A provision in a gestational agreement approved pursuant to section 14 contrary to a provision in this act is unenforceable.
Sec. 17. Exclusive, continuing jurisdiction. Subject to the jurisdictional standards of section 12 of public act 99-185 of the Uniform Child Custody Jurisdiction and Enforcement Act, the court conducting a proceeding under this part has exclusive, continuing jurisdiction of all matters arising out of the gestational agreement until a child born to the gestational mother during the period governed by the agreement attains the age of 180 days.
Sec. 18. Termination of gestational agreement. (NEW) (a) After entry of an order under section 14 but before the prospective gestational carrier becomes pregnant by means of assisted reproduction, the prospective gestational carrier, her husband, or the intended parent may seek to terminate the agreement by filing notice of the termination with the Probate Court and by giving written notice of termination to all other parties and to any health care provider who is providing assisted reproduction services. The court, for good cause shown, such as death or divorce of an intended parent, may also, before pregnancy, give notice of intent to terminate the agreement.
(b) On receipt of the notice and on finding that a pregnancy has not occurred by means of assisted reproduction, the court shall vacate the order entered under this part.
(c) Neither a prospective gestational carrier nor her husband, if any, is liable to the intended parent for terminating an agreement pursuant to this section.
(d) If a prospective gestational carrier terminates the agreement under this section, any egg retrieved from her or embryo created belongs to the intended parent. If the intended parent terminates the agreement under this section, any egg retrieved from the gestational carrier or embryo created using an egg retrieved from the gestational carrier belongs to the gestational carrier.
Sec. 19. Parentage under approved gestational agreement. (NEW) (a) On birth of a child to a gestational carrier within 300 days of the last procedure using assisted reproduction pursuant to a gestational agreement, an individual who is the intended parent of the child is, in all respects, the parent of the child.
(b) On birth of the child to a gestational carrier, the intended parent or the gestational carrier shall immediately furnish to the facility in which the birth takes place or to such other person required to prepare and file a birth certificate pursuant to section 7-48 of the general statutes a certified copy of the order of the court issued under section 14. A birth certificate shall be filed in accordance with the provisions of section 7-48. A certified copy of the order of the court issued under section 14 shall be sent to the Department of Public Health by the facility or person required to prepare and file a birth certificate under section 7-48.
(c) On application, the Probate Court may issue an order supplemental to the order issued pursuant to section 14. As necessary, the court, in its supplemental order, may:
(1) confirm that the intended parent is the parent of the child;
(2) order that the child be surrendered to the intended parent;
(3) if no birth certificate has been prepared and filed pursuant to section 7-48, direct that a birth certificate be prepared and filed by the appropriate authority naming the appropriate individual as parent of the child;
(4) if a birth certificate has already been prepared and filed pursuant to section 7-48, direct the department of public health to issue a new birth certificate removing the names of any inappropriate individual, adding the names of any appropriate individual, and, if necessary, changing the name of the child;
(5) if the birth is not consistent with the gestational agreement approved under section 14 of this act, determine the parentage of the child; and
(6) make any other order necessary to carry out the purposes of this act with respect to a gestational agreement approved under section 14 of this act.
Sec. 20. Nonapproved gestational agreement. (NEW) (a) A gestational agreement not approved by a court pursuant to section 14 is not effective and enforceable under this act. This act does not affect the validity of a nonapproved agreement, entered into either before or after the effective date of this act, if the agreement is valid under other law of this state.
(b) If a birth results under an agreement not approved by a court under this act, the parent-child relationship is determined under the provisions of chapter 815y of the general statutes.
(c) An individual who is a party to a nonapproved gestational agreement as an intended parent may be held liable for support of the resulting child, even if the agreement is otherwise unenforceable. The liability under this subsection includes assessing filing fees, reasonable attorney’s fees, fees for genetic testing, other costs and necessary travel, and other reasonable expenses incurred to adjudicate parentage.
(d) This section applies to a nonapproved gestational agreement regardless of whether the agreement was submitted to the court for approval.
Sec 21. Section 53-21 of the general statutes is repealed and the following is substituted in lieu thereof.
[Sec. 53-21. Injury or risk of injury to, or impairing morals of, children. Sale of children.] Any person who (1) wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that the life or limb of such child is endangered, the health of such child is likely to be injured or the morals of such child are likely to be impaired, or does any act likely to impair the health or morals of any such child, or (2) has contact with the intimate parts, as defined in section 53a-65, of a child under the age of sixteen years or subjects a child under sixteen years of age to contact with the intimate parts of such person, in a sexual and indecent manner likely to impair the health or morals of such child, or (3) permanently transfers the legal or physical custody of a child under the age of sixteen years to another person for money or other valuable consideration or acquires or receives the legal or physical custody of a child under the age of sixteen years from another person upon payment of money or other valuable consideration to such other person or a third person, except in connection with an adoption proceeding that complies with the provisions of chapter 803 and except in connection with a gestational agreement approved under the provisions of this act, shall be guilty of a class C felony.
Sec. 22. Section 45a-186 of the general statutes is repealed and the following is substituted lieu thereof:
[Sec. 45a-186. Appeals from probate.] (a) Any person aggrieved by any order, denial or decree of a court of probate in any matter, unless otherwise specially provided by law, may appeal therefrom to the Superior Court in accordance with subsection (b) of this section. Except in the case of an appeal by the state, such person shall give security for costs in the amount of one hundred fifty dollars, which may be paid to the clerk, or a recognizance with surety annexed to the appeal and taken before the clerk or a commissioner of the Superior Court or a bond substantially in accordance with the bond provided for appeals to the Supreme Court. Appeals from any decision rendered in any case after a record is made under sections 51-72 and 51-73 shall be on the record and shall not be a trial de novo.
(b) Any such appeal shall be filed in the superior court for the judicial district in which such court of probate is located except that (1) any appeal under subsection (b) of section 12-359 or subsection (b) of section 12-367 or subsection (b) of section 12-395, shall be filed in the judicial district of Hartford and (2) any appeal in a matter concerning removal of a parent as guardian, termination of parental rights, gestational agreements under this act, or adoption shall be filed in the superior court for juvenile matters having jurisdiction over matters arising in such probate district.
Sec. 23. Applicability. (NEW) The provisions of sections 45a-771 to 45a-779, inclusive, apply to children born before the effective date of this act.