HOUSE BILL 305
56th legislature - STATE OF NEW MEXICO - first session, 2023
INTRODUCED BY
Greg Nibert
AN ACT
RELATING TO PARENTAGE; AMENDING, REPEALING AND ENACTING SECTIONS OF THE NEW MEXICO UNIFORM PARENTAGE ACT TO CLARIFY SURROGACY AGREEMENTS, ASSISTED REPRODUCTION AND PARENTAGE DETERMINATION.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. Section 40-11A-102 NMSA 1978 (being Laws 2009, Chapter 215, Section 1-102) is amended to read:
"40-11A-102. DEFINITIONS.--As used in the New Mexico Uniform Parentage Act:
A. "acknowledged father" means a man who has established a father-child relationship pursuant to Article 3 of the New Mexico Uniform Parentage Act;
B. "adjudicated father" means a man who has been adjudicated by a court of competent jurisdiction to be the father of a child;
C. "alleged father" means a man who alleges himself to be, or is alleged to be, the genetic father or a possible genetic father of a child, but whose paternity has not been determined. "Alleged father" does not include:
(1) a presumed father;
(2) a man whose parental rights have been terminated or declared not to exist; or
(3) a male donor;
D. "assisted reproduction" means a method of causing pregnancy other than sexual intercourse. "Assisted reproduction" includes:
(1) intrauterine or intracervical insemination;
(2) donation of [eggs] gametes;
(3) donation of embryos;
(4) in-vitro fertilization and transfer of embryos; and
(5) intracytoplasmic sperm injection;
E. "bureau" means the vital records and health statistics bureau of the department of health;
F. "child" means a person of any age whose parentage may be determined pursuant to the New Mexico Uniform Parentage Act;
G. "commence" means to file the initial pleading seeking an adjudication of parentage in district court;
H. "determination of parentage" means the establishment of the parent-child relationship by the signing of a valid acknowledgment of paternity pursuant to Article 3 of the New Mexico Uniform Parentage Act or adjudication by the court;
I. "donor" means a person who [produces eggs or sperm used for] provides gametes intended for use in assisted reproduction, whether or not for consideration. "Donor" does not include:
[(1) a husband who provides sperm, or a wife who provides eggs, to be used for assisted reproduction by the wife;
(2)] (1) a woman who gives birth to a child [by means of assisted reproduction] conceived by assisted reproduction, except as otherwise provided in Article 8 of the New Mexico Uniform Parentage Act; or
[(3)] (2) a parent pursuant to Article 7 of the New Mexico Uniform Parentage Act or an intended parent under Article 8 of that act; J. "ethnic or racial group" means, for purposes of genetic testing, a recognized group that a person identifies as all or part of the person's ancestry or that is so identified by other information;
K. "gamete" means sperm, egg or any part of a sperm or egg;
[K.] L. "genetic testing" means an analysis of genetic markers to exclude or identify a man as the father or a woman as the mother of a child. "Genetic testing" includes an analysis of one or a combination of the following:
(1) deoxyribonucleic acid; and
(2) blood-group antigens, red-cell antigens, human-leukocyte antigens, serum enzymes, serum proteins or red-cell enzymes;
M. "intended parent" means a person, married or unmarried, who manifests an intent to be legally bound as a parent of a child conceived by assisted reproduction;
[L.] N. "man" means a male person of any age;
[M.] O. "parent" means a person who has established a parent-child relationship pursuant to Section [2-201 of the New Mexico Uniform Parentage Act] 40-11A-201 NMSA 1978;
[N. "parent-child relationship" means the legal relationship between a child and a parent of the child, including the mother-child relationship and the father-child relationship;]
P. "parentage" or "parent-child relationship" means the legal relationship between a child and a parent of the child;
[O.] Q. "paternity index" means the likelihood of paternity calculated by computing the ratio between:
(1) the likelihood that the tested man is the father, based on the genetic markers of the tested man, mother and child, conditioned on the hypothesis that the tested man is the father of the child; and
(2) the likelihood that the tested man is not the father, based on the genetic markers of the tested man, mother and child, conditioned on the hypothesis that the tested man is not the father of the child and that the father is of the same ethnic or racial group as the tested man;
[P.] R. "presumed father" means a man who, by operation of law pursuant to Section [2-204 of the New Mexico Uniform Parentage Act] 40-11A-204 NMSA 1978, is recognized as the father of a child until that status is rebutted or confirmed in a judicial proceeding;
[Q.] S. "probability of paternity" means the measure, for the ethnic or racial group to which the alleged father belongs, of the probability that the man in question is the father of the child, compared with a random, unrelated man of the same ethnic or racial group, expressed as a percentage incorporating the paternity index and a prior probability;
[R.] T. "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;
U. "sign" means, with present intent to authenticate or adopt a record:
(1) to execute or adopt a tangible symbol; or
(2) to attach to or logically associate with the record an electronic symbol, sound or process;
[S.] V. "signatory" means a person who signs or otherwise authenticates a record and is bound by its terms;
[T.] W. "state" means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands or any territory or insular possession subject to the jurisdiction of the United States; [and]
[U.] X. "support-enforcement agency" means the human services department designated pursuant to Section 27-2-27 NMSA 1978 as the single state agency for the enforcement of child and spousal support obligations pursuant to Title IV D of the federal Social Security Act and any other public official or agency authorized to seek:
(1) enforcement of support orders or laws relating to the duty of support;
(2) establishment or modification of child support;
(3) determination of parentage; or
(4) location of child-support obligors and their income and assets;
Y. "transfer" means a procedure for assisted reproduction by which an embryo or sperm is placed in the body of the woman who will give birth to the child;
Z. "witnessed" means that at least one person who is authorized to sign has signed a record to verify that the person personally observed a signatory sign the record; and
AA. "woman" means a female person of any age."
SECTION 2. Section 40-11A-701 NMSA 1978 (being Laws 2009, Chapter 215, Section 7-701) is amended to read:
"40-11A-701. SCOPE OF ARTICLE.--This article does not apply to the birth of a child conceived by [means of] sexual intercourse or assisted reproduction pursuant to a surrogacy agreement pursuant to Article 8 of the New Mexico Uniform Parentage Act."
SECTION 3. Section 40-11A-702 NMSA 1978 (being Laws 2009, Chapter 215, Section 7-702) is amended to read:
"40-11A-702. PARENTAL STATUS OF DONOR.--[Donors of eggs, sperm or embryos are not the parents of a child conceived by means of assisted reproduction] A donor is not a parent of a child conceived by assisted reproduction."
SECTION 4. Section 40-11A-703 NMSA 1978 (being Laws 2009, Chapter 215, Section 7-703) is amended to read:
"40-11A-703. PARENTAGE OF CHILD OF ASSISTED REPRODUCTION.--A person who [provides eggs, sperm or embryos for or] consents to assisted reproduction as provided in Section [7-704 of the New Mexico Uniform Parentage Act] 40-11A-704 NMSA 1978 by a woman with the intent to be the parent of a child conceived by the assisted reproduction is a parent of the [resulting] child."
SECTION 5. Section 40-11A-704 NMSA 1978 (being Laws 2009, Chapter 215, Section 7-704) is amended to read:
"40-11A-704. CONSENT TO ASSISTED REPRODUCTION.--
A. [The intended parent or parents shall consent to the assisted reproduction in a record signed by them before the placement of the eggs, sperm or embryos. Donors shall also consent to an assisted reproduction before retrieval of the donors' eggs or sperm.] Except as otherwise provided in Subsection B of this section, the consent described in Section 40-11A-703 NMSA 1978 shall be in a record signed by a woman giving birth to a child conceived by assisted reproduction and a person who intends to be a parent of the child.
B. Failure [of a parent to sign a] to consent in a record as required by Subsection A of this section [does] before, on or after the birth of a child shall not preclude [a] the court from finding [of] consent to parentage if: [the parent, during the first two years of the child's life, resided in the same household with the child and openly held out the child as the parent's own.
C. All papers relating to the assisted reproduction, whether part of a court, medical or any other file, are subject to inspection only upon an order of the district court or with the consent, in a signed record, of:
(1) the donor or donors; and
(2) the parent or parents who consented to the assisted reproduction pursuant to Subsection A of this section or a child who was born as a result of the assisted reproduction pursuant to Subsection A of this section if the child is eighteen years of age or older.]
(1) the woman or the person proves by clear and convincing evidence the existence of an express agreement entered into before conception that the person and the woman intended they both would be parents of the child; or
(2) the woman and the person for the first two years of the child's life, including any period of temporary absence, resided together in the same household with the child and both openly held out the child as the person's child, unless the person dies or becomes incapacitated before the child attains two years of age or the child dies before the child attains two years of age, in which case the court may find consent under this subsection to parentage if a party proves by clear and convincing evidence that the woman and the person intended to reside together in the same household with the child and both intended that the person would openly hold out the child as the person's child, but the person was prevented from carrying out that intent by death or incapacity."
SECTION 6. Section 40-11A-705 NMSA 1978 (being Laws 2009, Chapter 215, Section 7-705) is amended to read:
"40-11A-705. LIMITATION ON [HUSBAND'S] SPOUSE'S DISPUTE OF [PATERNITY] PARENTAGE.--
A. Except as otherwise provided in Subsection B of this section, a person who, at the time of a child's birth, is the [husband] spouse of [a wife] the woman who [gives] gave birth to a child by [means of] assisted reproduction [shall] may not challenge [his paternity] the person's parentage of the child unless:
(1) [within] not later than two years after [learning of] the birth of the child, [he] the person commences a proceeding to adjudicate [his paternity] the person's parentage of the child; and
(2) the district court finds that [he] the person did not consent to the assisted reproduction, before, on or after birth of the child or withdrew consent pursuant to Section 40-11A-708 NMSA 1978.
B. A proceeding to adjudicate [paternity] a spouse's parentage of a child born by assisted reproduction may be [maintained] commenced at any time if the [district] court determines that:
(1) the [husband did not provide sperm for or, before or after the birth of the child, consent] spouse neither provided a gamete for, nor consented to, the assisted reproduction [by his wife];
(2) the [husband and the mother of] spouse and the woman who gave birth to the child have not cohabited since the probable time of assisted reproduction; and
(3) the [husband] spouse never openly held out the child as [his own] the spouse's child.
C. [The limitation provided in] This section applies to a [marriage dissolved or declared invalid after assisted reproduction] spouse's dispute of parentage even if the spouse's marriage is declared void after assisted reproduction occurs."
SECTION 7. Section 40-11A-706 NMSA 1978 (being Laws 2009, Chapter 215, Section 7-706) is amended to read:
"40-11A-706. EFFECT OF [DISSOLUTION OF] CERTAIN LEGAL PROCEEDINGS REGARDING MARRIAGE [OR WITHDRAWAL OF CONSENT].--
[A. If a marriage is dissolved before placement of eggs, sperm or embryos, the former spouse is not a parent of the resulting child unless the former spouse consented in a signed record that if assisted reproduction were to occur after a divorce the former spouse would be a parent of the child.
B. Unless otherwise agreed in a signed record, the consent of a woman or a man to assisted reproduction may be withdrawn by that person in a signed record delivered to the other person at any time before placement of eggs, sperm or embryos if the placement has not occurred within one year after the consent. A person who withdraws consent pursuant to this section is not a parent of the resulting child.] If a marriage of a woman who gives birth to a child conceived by assisted reproduction is terminated through dissolution, or is declared void or is subject to division of property and separation before transfer of gametes or embryos to the woman, a former spouse of the woman is not a parent of the child unless the former spouse of the woman consented in a record that the former spouse would be a parent of the child if assisted reproduction were to occur after a dissolution or a voiding of the marriage or a division of property and separation and the former spouse did not withdraw consent under Section 40-11A-708 NMSA 1978."
SECTION 8. Section 40-11A-707 NMSA 1978 (being Laws 2009, Chapter 215, Section 7-707) is amended to read:
"40-11A-707. PARENTAL STATUS OF DECEASED PERSON.--
A. If a person who intends to be a parent of a child conceived by assisted reproduction dies during the period between the transfer of a gamete or embryo and the birth of the child, the person's death does not preclude the establishment of the person's parentage of the child if the person otherwise would be a parent of the child pursuant to the New Mexico Uniform Parentage Act.
B. If a person who consented in a record to [be a parent by] assisted reproduction by a woman who agreed to give birth to a child dies before [placement] a transfer of [eggs, sperm] gametes or embryos, the deceased person is [not] a parent of [the resulting] a child [unless the deceased spouse consented in a signed record that if assisted reproduction were to occur after death, the deceased person would be a parent of the child] conceived by the assisted reproduction only if:
(1) either the person's:
(a) consent was provided in a record that states that if assisted reproduction were to occur after the death of the person, the person would be a parent of the child; or
(b) intent to be a parent of a child conceived by assisted reproduction after the person's death is established by clear and convincing evidence; and
(2) either the:
(a) embryo is in utero not later than thirty-six months after the person's death; or
(b) child is born not later than forty-five months after the person's death."
SECTION 9. A new section of the New Mexico Uniform Parentage Act, Section 40-11A-708 NMSA 1978, is enacted to read:
"40-11A-708. [NEW MATERIAL] WITHDRAWAL OF CONSENT.--
A. A person who consents pursuant to Section 40-11A-704 NMSA 1978 to assisted reproduction may withdraw consent at any time before a transfer that results in a pregnancy by giving notice in a record of the withdrawal of consent to the woman who agreed to give birth to a child conceived by assisted reproduction and to any clinic or health care provider facilitating the assisted reproduction. Failure to give notice to the clinic or health care provider shall not affect a determination of parentage pursuant to the New Mexico Uniform Parentage Act.
B. A person who withdraws consent pursuant to Subsection A of this section is not a parent of the child pursuant to this article."
ARTICLE 8
SURROGACY AGREEMENTS
PART 1 - GENERAL REQUIREMENTS
SECTION 10. Section 40-11A-801 NMSA 1978 (being Laws 2009, Chapter 215, Section 8-801) is repealed and a new Section 40-11A-801 NMSA 1978 is enacted to read:
"40-11A-801. [NEW MATERIAL] DEFINITIONS.--As used in this article:
A. "dissolution of marriage" includes a declaration that a marriage is void pursuant to Section 40-1-9 NMSA 1978, a decree of dissolution of marriage pursuant to Section 40-4-1 NMSA 1978 and a division of property and separation pursuant to Section 40-4-3 NMSA 1978;
B. "genetic surrogate" means a woman who is not an intended parent and who agrees to become pregnant through assisted reproduction using her own gamete, pursuant to a genetic surrogacy agreement;
C. "gestational surrogate" means a woman who is not an intended parent and who agrees to become pregnant through assisted reproduction using gametes that are not her own, pursuant to a gestational surrogacy agreement;
D. "notarial officer" means a notarial officer as defined in Section 14-14A-2 NMSA 1978; and
E. "surrogacy agreement" means an agreement between one or more intended parents and a woman who is not an intended parent in which the woman agrees to become pregnant through assisted reproduction and which provides that each intended parent is a parent of a child conceived pursuant to the agreement. Unless otherwise specified, "surrogacy agreement" refers to both a gestational surrogacy agreement and a genetic surrogacy agreement."
SECTION 11. A new section of the New Mexico Uniform Parentage Act, Section 40-11A-802 NMSA 1978, is enacted to read:
"40-11A-802. [NEW MATERIAL] ELIGIBILITY TO ENTER GESTATIONAL OR GENETIC SURROGACY AGREEMENT.--
A. To execute an agreement to act as a gestational or genetic surrogate, a woman shall:
(1) have attained twenty-one years of age;
(2) have previously given birth to at least one child;
(3) complete a medical evaluation related to the surrogacy agreement by a licensed medical doctor;
(4) complete a mental health consultation by a licensed mental health professional; and
(5) have independent legal representation of the woman's choice throughout the surrogacy arrangement regarding the terms of the surrogacy agreement and the potential legal consequences of the agreement.
B. To execute a gestational or genetic surrogacy agreement, each intended parent, whether or not genetically related to the child, shall:
(1) have attained twenty-one years of age;
(2) complete a medical evaluation related to the surrogacy agreement by a licensed medical doctor;
(3) complete a mental health consultation by a licensed mental health professional; and
(4) have independent legal representation of the intended parent's choice throughout the surrogacy arrangement regarding the terms of the surrogacy agreement and the potential legal consequences of the agreement."
SECTION 12. A new section of the New Mexico Uniform Parentage Act, Section 40-11A-803 NMSA 1978, is enacted to read:
"40-11A-803. [NEW MATERIAL] REQUIREMENTS OF GESTATIONAL OR GENETIC SURROGACY AGREEMENT--PROCESS.--A gestational or genetic surrogacy agreement shall be executed in compliance with the following rules:
A. at least one party shall be a resident of this state or, if no party is a resident of this state, at least one medical evaluation or procedure or mental health consultation pursuant to the agreement shall occur in this state;
B. a surrogate and each intended parent shall meet the requirements of Section 40-11A-802 NMSA 1978;
C. each intended parent, the surrogate and the surrogate's spouse, if any, shall be parties to the agreement;
D. the agreement shall be in a record signed by each party listed in Subsection C of this section;
E. the surrogate and each intended parent shall acknowledge in a record receipt of a copy of the agreement;
F. the signature of each party to the agreement shall be attested by a notarial officer or witnessed;
G. the surrogate and the intended parent or parents shall have independent legal representation throughout the surrogacy arrangement regarding the terms of the surrogacy agreement and the potential legal consequences of the agreement, and each counsel shall be identified in the surrogacy agreement;
H. the intended parent or parents shall pay for independent legal representation for the surrogate; and
I. the agreement shall be executed before a medical procedure occurs related to the surrogacy agreement, other than the medical evaluation and mental health consultation required by Section 40-11A-802 NMSA 1978."
SECTION 13. A new section of the New Mexico Uniform Parentage Act, Section 40-11A-804 NMSA 1978, is enacted to read:
"40-11A-804. [NEW MATERIAL] REQUIREMENTS OF GESTATIONAL OR GENETIC SURROGACY AGREEMENT--CONTENT.--
A. A gestational or genetic surrogacy agreement shall comply with the following requirements:
(1) a surrogate agrees to attempt to become pregnant by means of assisted reproduction;
(2) except as otherwise provided in Sections 40-11A-811, 40-11A-814 and 40-11A-815 NMSA 1978, the surrogate and the surrogate's spouse or former spouse, if any, shall have no claim to parentage of a child conceived by assisted reproduction pursuant to the surrogacy agreement;
(3) the surrogate's spouse, if any, shall acknowledge and agree to comply with the obligations imposed on the surrogate by the surrogacy agreement;
(4) except as otherwise provided in Sections 40-11A-811, 40-11A-814 and 40-11A-815 NMSA 1978, the intended parent or, if there are two intended parents, each one jointly and severally, immediately on birth shall be the exclusive parent or parents of the child, regardless of number of children born or gender or mental or physical condition of each child;
(5) except as otherwise provided in Sections 40-11A-811, 40-11A-814 and 40-11A-815 NMSA 1978, the intended parent or, if there are two intended parents, each parent jointly and severally, immediately on birth shall assume responsibility for the financial support of the child, regardless of number of children born or gender or mental or physical condition of each child;
(6) the surrogacy agreement shall include information disclosing how each intended parent will cover the surrogacy-related expenses of the surrogate and the medical expenses of the child. If health care coverage is used to cover the medical expenses, the disclosure shall include a summary of the health care policy provisions related to coverage for surrogate pregnancy, including any possible liability of the surrogate, third-party-liability liens, other insurance coverage and any notice requirement that could affect coverage or liability of the surrogate. Unless the agreement expressly provides otherwise, the review and disclosure do not constitute legal advice. If the extent of coverage is uncertain, a statement of that fact is sufficient to comply with this paragraph;
(7) the surrogacy agreement shall permit the surrogate to make all health and welfare decisions regarding herself and her pregnancy. The New Mexico Uniform Parentage Act shall not enlarge or diminish the surrogate's right to terminate her pregnancy; and
(8) the surrogacy agreement shall include information about each party's right pursuant this article to terminate the surrogacy agreement.
B. A gestational or genetic surrogacy agreement may provide for:
(1) payment of consideration and reasonable expenses; and
(2) reimbursement of specific expenses if the agreement is terminated pursuant to this article.
C. A right created pursuant to a gestational or genetic surrogacy agreement is not assignable, and there is no third-party beneficiary of the agreement other than the child."
SECTION 14. A new section of the New Mexico Uniform Parentage Act, Section 40-11A-805 NMSA 1978, is enacted to read:
"40-11A-805. [NEW MATERIAL] GESTATIONAL OR GENETIC SURROGACY AGREEMENT--EFFECT OF SUBSEQUENT CHANGE OF MARITAL STATUS.--
A. Unless a gestational or genetic surrogacy agreement expressly provides otherwise:
(1) the marriage of a surrogate after the agreement is signed by all parties does not affect the validity of the agreement, her spouse's consent to the agreement is not required and her spouse is not a presumed parent of a child conceived by assisted reproduction pursuant to the agreement; and
(2) the dissolution of marriage of the surrogate after the agreement is signed by all parties shall not affect the validity of the agreement.
B. Unless a gestational or genetic surrogacy agreement expressly provides otherwise:
(1) the marriage of an intended parent after the agreement is signed by all parties shall not affect the validity of a surrogacy agreement, the consent of the spouse of the intended parent is not required and the spouse of the intended parent is not, based on the agreement, a parent of a child conceived by assisted reproduction pursuant to the agreement; and
(2) the dissolution of marriage of an intended parent after the agreement is signed by all parties shall not affect the validity of the agreement and, except as otherwise provided in Section 40-11A-814 NMSA 1978, the intended parents are the parents of the child."
SECTION 15. A new section of the New Mexico Uniform Parentage Act, Section 40-11A-806 NMSA 1978, is enacted to read:
"40-11A-806. [NEW MATERIAL] GESTATIONAL OR GENETIC SURROGACY AGREEMENT--INSPECTION OF DOCUMENTS.--Unless the court orders otherwise, a petition and any other document related to a gestational or genetic surrogacy agreement filed with the court pursuant to Sections 40-11A-801 through 40-11A-807 NMSA 1978 are not open to inspection by any person other than the parties to the proceeding, a child conceived by assisted reproduction pursuant to the agreement, their attorneys and the relevant state agency. A court may not authorize a person to inspect a document related to the agreement, unless required by exigent circumstances. The person seeking to inspect the document may be required to pay the expense of preparing a copy of the document to be inspected."
SECTION 16. A new section of the New Mexico Uniform Parentage Act, Section 40-11A-807 NMSA 1978, is enacted to read:
"40-11A-807. [NEW MATERIAL] GESTATIONAL OR GENETIC SURROGRACY AGREEMENT--EXCLUSIVE, CONTINUING JURISDICTION.--During the period after the execution of a gestational or genetic surrogacy agreement until ninety days after the birth of a child conceived by assisted reproduction pursuant to the agreement, a court of this state conducting a proceeding pursuant to the New Mexico Uniform Parentage Act has exclusive, continuing jurisdiction over all matters arising out of the agreement. This section shall not give the court jurisdiction over a child-custody or child-support proceeding if jurisdiction is not otherwise authorized by law of this state other than the New Mexico Uniform Parentage Act."
PART 2 -- SPECIAL RULES FOR GESTATIONAL SURROGACY AGREEMENTSECTION 17. A new section of the New Mexico Uniform Parentage Act, Section 40-11A-808 NMSA 1978, is enacted to read:
"40-11A-808. [NEW MATERIAL] TERMINATION OF GESTATIONAL SURROGACY AGREEMENT.--
A. A party to a gestational surrogacy agreement may terminate the agreement at any time before an embryo transfer by giving notice of termination in a record to all other parties. If an embryo transfer does not result in a pregnancy, a party may terminate the agreement at any time before a subsequent embryo transfer by giving notice of termination in a record to all other parties.
B. Unless a gestational surrogacy agreement provides otherwise, on termination of the agreement pursuant to Subsection A of this section, the parties are released from the agreement, except that each intended parent remains responsible for expenses that are reimbursable pursuant to the agreement and incurred by the gestational surrogate through the date of termination.
C. Except in a case involving fraud, neither a gestational surrogate nor the surrogate's spouse or former spouse, if any, is liable to the intended parent or parents for expenses, other damages, a penalty or liquidated damages for terminating a gestational surrogacy agreement pursuant to this section."
SECTION 18. A new section of the New Mexico Uniform Parentage Act, Section 40-11A-809 NMSA 1978, is enacted to read:
"40-11A-809. [NEW MATERIAL] PARENTAGE UNDER GESTATIONAL SURROGACY AGREEMENT.--
A. Except as otherwise provided in Subsection C of this section, Subsection B of Section 40-11A-810 NMSA 1978 or Section 40-11A-812 NMSA 1978, on the birth of a child conceived by assisted reproduction pursuant to a gestational surrogacy agreement, each intended parent is, by operation of law, a parent of the child.
B. Except as otherwise provided in Subsection C of this section or Section 40-11A-812 NMSA 1978, neither a gestational surrogate nor the surrogate's spouse or former spouse, if any, is a parent of the child.
C. If a child is alleged to be a genetic child of the woman who agreed to be a gestational surrogate, the court shall order genetic testing of the child. If the child is a genetic child of the woman who agreed to be a gestational surrogate, parentage shall be determined based on Articles 1 through 6 of the New Mexico Uniform Parentage Act.
D. Except as otherwise provided in Subsection C of this section, Subsection B of Section 40-11A-810 NMSA 1978 or Section 40-11A-812 NMSA 1978, if, due to a clinical or laboratory error, a child conceived by assisted reproduction pursuant to a gestational surrogacy agreement is not genetically related to an intended parent or a donor who donated to the intended parent or parents, each intended parent, and not the gestational surrogate and the surrogate's spouse or former spouse, if any, is a parent of the child, subject to any other claim of parentage."
SECTION 19. A new section of the New Mexico Uniform Parentage Act, Section 40-11A-810 NMSA 1978, is enacted to read:
"40-11A-810. [NEW MATERIAL] GESTATIONAL SURROGACY AGREEMENT--PARENTAGE OF DECEASED INTENDED PARENT.--
A. Section 40-11A-809 NMSA 1978 applies to an intended parent even if the intended parent died during the period between the transfer of a gamete or embryo and the birth of the child.
B. Except as otherwise provided in Section 40-11A-812 NMSA 1978, an intended parent is not a parent of a child conceived by assisted reproduction pursuant to a gestational surrogacy agreement if the intended parent dies before the transfer of a gamete or embryo unless:
(1) the agreement provides otherwise; and
(2) the transfer of a gamete or embryo occurs not later than thirty-six months after the death of the intended parent or the birth of the child occurs not later than forty-five months after the death of the intended parent."
SECTION 20. A new section of the New Mexico Uniform Parentage Act, Section 40-11A-811 NMSA 1978, is enacted to read:
"40-11A-811. [NEW MATERIAL] GESTATIONAL SURROGACY AGREEMENT--ORDER OF PARENTAGE.--
A. Except as otherwise provided in Subsection C of Section 40-11A-809 NMSA 1978 or Section 40-11A-812 NMSA 1978, before, on or after the birth of a child conceived by assisted reproduction pursuant to a gestational surrogacy agreement, a party to the agreement may commence a proceeding in the district court for an order or judgment:
(1) declaring that each intended parent is a parent of the child and ordering that parental rights and duties vest immediately on the birth of the child exclusively in each intended parent;
(2) declaring that the gestational surrogate and the surrogate's spouse or former spouse, if any, are not the parents of the child;
(3) designating the content of the birth record in accordance with Section 24-14-13 NMSA 1978 and directing the department of health to designate each intended parent as a parent of the child;
(4) to protect the privacy of the child and
the parties, declaring that the court record is not open to inspection except as authorized pursuant to Section 40-11A-806 NMSA 1978;
(5) requiring that the child be surrendered to the intended parent or parents if necessary; and
(6) for other relief the court determines necessary and proper.
B. The court may issue an order or judgment pursuant to Subsection A of this section before the birth of the child. The court shall stay enforcement of the order or judgment until the birth of the child.
C. Neither this state nor the department of health is a necessary party to a proceeding pursuant to Subsection A this section."
SECTION 21. A new section of the New Mexico Uniform Parentage Act, Section 40-11A-812 NMSA 1978, is enacted to read:
"40-11A-812. [NEW MATERIAL] EFFECT OF GESTATIONAL SURROGACY AGREEMENT.--
A. A gestational surrogacy agreement that complies with Sections 40-11A-802 through 40-11A-804 NMSA 1978 is enforceable.
B. If a child was conceived by assisted reproduction pursuant to a gestational surrogacy agreement that does not comply with Sections 40-11A-802 through 40-11A-804 NMSA 1978, the court shall determine the rights and duties of the parties to the agreement consistent with the intent of the parties at the time of execution of the agreement. Each party to the agreement and any person who at the time of the execution of the agreement was a spouse of a party to the agreement has standing to maintain a proceeding to adjudicate an issue related to the enforcement of the agreement.
C. Except as expressly provided in a gestational surrogacy agreement or Subsection D or E of this section, if the agreement is breached by the gestational surrogate or one or more intended parents, the non-breaching party is entitled to the remedies available at law or in equity.
D. Specific performance is not a remedy available for breach by a gestational surrogate of a provision in the agreement that the gestational surrogate be impregnated, terminate or not terminate a pregnancy or submit to medical procedures.
E. Except as otherwise provided in Subsection D of this section, if an intended parent is determined to be a parent of the child, specific performance is a remedy available for:
(1) breach of the agreement by a gestational surrogate that prevents the intended parent from exercising immediately on birth of the child the full rights of parentage; or
(2) breach by the intended parent that prevents the intended parent's acceptance, immediately on birth of the child conceived by assisted reproduction pursuant to the agreement, of the duties of parentage or that results in the intended parent's failure to accept those duties immediately."
PART 3 -- SPECIAL RULES FOR GENETIC SURROGACY AGREEMENT
SECTION 22. A new section of the New Mexico Uniform Parentage Act, Section 40-11A-813 NMSA 1978, is enacted to read:
"40-11A-813. [NEW MATERIAL] REQUIREMENTS TO VALIDATE GENETIC SURROGACY AGREEMENT.--
A. Except as otherwise provided in Section 40-11A-816 NMSA 1978, to be enforceable, a genetic surrogacy agreement shall be validated by the district court. A proceeding to validate the agreement shall be commenced before assisted reproduction related to the surrogacy agreement.
B. The court shall issue an order validating a genetic surrogacy agreement if the court finds that:
(1) Sections 40-11A-802 through 40-11A-804 NMSA 1978 are satisfied; and
(2) all parties entered into the agreement voluntarily and understand its terms.
C. A person who terminates a genetic surrogacy agreement pursuant to Section 40-11A-814 NMSA 1978 shall file notice of the termination with the court. The person shall serve a copy of that notice on each party who was sent a notice pursuant to Section 40-11A-814 NMSA 1978. On receipt of the notice, the court shall vacate any order issued pursuant to Subsection B of this section. A person who does not notify the court of the termination of the agreement is subject to sanctions."
SECTION 23. A new section of the New Mexico Uniform Parentage Act, Section 40-11A-814 NMSA 1978, is enacted to read:
"40-11A-814. [NEW MATERIAL] TERMINATION OF GENETIC SURROGACY AGREEMENT.--
A. A party to a genetic surrogacy agreement may terminate the agreement as follows:
(1) an intended parent who is a party to the agreement may terminate the agreement at any time before a gamete or embryo transfer by giving notice of termination in a record to all other parties. If a gamete or embryo transfer does not result in a pregnancy, a party may terminate the agreement at any time before a subsequent gamete or embryo transfer. The notice of termination shall be attested by a notarial officer or witnessed; or
(2) a genetic surrogate who is a party to the agreement may withdraw consent to the agreement any time before forty-eight hours after the birth of a child conceived by assisted reproduction pursuant to the agreement. To withdraw consent, the genetic surrogate shall execute a notice of termination in a record stating the surrogate's intent to terminate the agreement. The notice of termination shall be attested by a notarial officer or witnessed and be delivered to each intended parent any time before forty-eight hours after the birth of the child.
B. On termination of the genetic surrogacy agreement pursuant to Subsection A of this section, the parties are released from all obligations pursuant to the agreement except that each intended parent remains responsible for all expenses incurred by the surrogate through the date of termination that are reimbursable pursuant to the agreement. Unless the agreement provides otherwise, the surrogate is not entitled to any non-expense-related compensation for serving as a surrogate.
C. Except in a case involving fraud, neither a genetic surrogate nor the surrogate's spouse or former spouse, if any, is liable to the intended parent or parents for expenses, compensation, other damages, a penalty or liquidated damages for terminating a genetic surrogacy agreement pursuant to this section."
SECTION 24. A new section of the New Mexico Uniform Parentage Act, Section 40-11A-815 NMSA 1978, is enacted to read:
"40-11A-815. [NEW MATERIAL] PARENTAGE UNDER VALIDATED GENETIC SURROGACY AGREEMENT.--
A. Unless a genetic surrogate exercises the right pursuant to Section 40-11A-814 NMSA 1978 to terminate a genetic surrogacy agreement, each intended parent is a parent of a child conceived by assisted reproduction pursuant an agreement validated pursuant to Section 40-11A-813 NMSA 1978.
B. Unless a genetic surrogate exercises the right pursuant to Section 40-11A-814 NMSA 1978 to terminate the genetic surrogacy agreement, on proof of a court order issued pursuant to Section 40-11A-813 NMSA 1978 validating the agreement, the court shall make an order:
(1) declaring that each intended parent is a parent of a child conceived by assisted reproduction pursuant to the agreement and ordering that parental rights and duties vest exclusively in each intended parent;
(2) declaring that the genetic surrogate and the surrogate's spouse or former spouse, if any, are not parents of the child;
(3) designating the contents of the birth certificate in accordance with Section 24-14-13 NMSA 1978 and directing the department of health to designate each intended parent as a parent of the child;
(4) to protect the privacy of the child and
the parties, declaring that the court record is not open to inspection, except as authorized pursuant to Section 40-11A-806 NMSA 1978;
(5) requiring that the child be surrendered to the intended parent or parents if necessary; and
(6) for other relief the court determines necessary and proper.
C. If a genetic surrogate terminates a genetic surrogacy agreement pursuant to Paragraph (2) of Subsection A of Section 40-11A-814 NMSA 1978, parentage of the child conceived by assisted reproduction pursuant to the agreement shall be determined pursuant to Articles 1 through 6 of the New Mexico Uniform Parentage Act.
D. If a child born to a genetic surrogate is alleged not to have been conceived by assisted reproduction, the court shall order genetic testing to determine the genetic parentage of the child. If the child was not conceived by assisted reproduction, parentage shall be determined pursuant to Articles 1 through 6 of the New Mexico Uniform Parentage Act. Unless the genetic surrogacy agreement provides otherwise, if the child was not conceived by assisted reproduction, the surrogate is not entitled to any non-expense-related compensation for serving as a surrogate.
E. Unless a genetic surrogate exercises the right pursuant to Section 40-11A-814 NMSA 1978 to terminate the genetic surrogacy agreement, if an intended parent fails to file notice required pursuant to Subsection A of Section 40-11A-814 NMSA 1978, the genetic surrogate or the support-enforcement agency may file with the court, not later than sixty days after the birth of a child conceived by assisted reproduction pursuant to the agreement, notice that the child has been born to the genetic surrogate. Unless the genetic surrogate has properly exercised the right pursuant to Section 40-11A-814 NMSA 1978 to withdraw consent to the agreement, on proof of a court order issued pursuant to Section 40-11A-813 NMSA 1978 validating the agreement, the court shall order that each intended parent is a parent of the child."
SECTION 25. A new section of the New Mexico Uniform Parentage Act, Section 40-11A-816 NMSA 1978, is enacted to read:
"40-11A-816. [NEW MATERIAL] EFFECT OF NONVALIDATED GENETIC SURROGACY AGREEMENT.--
A. A genetic surrogacy agreement, whether or not in a record, that is not validated pursuant to Section 40-11A-813 NMSA 1978 is enforceable only to the extent provided in this section and Section 40-11A-818 NMSA 1978.
B. If all parties agree, a court may validate a genetic surrogacy agreement after assisted reproduction has occurred but before the birth of a child conceived by assisted reproduction pursuant to the agreement.
C. If a child conceived by assisted reproduction pursuant to a genetic surrogacy agreement that is not validated pursuant to Section 40-11A-813 NMSA 1978 is born and the genetic surrogate, consistent with Paragraph (2) of Subsection A of Section 40-11A-814 NMSA 1978, withdraws her consent to the agreement before forty-eight hours after the birth of the child, the court shall adjudicate the parentage of the child pursuant to Articles 1 through 6 of the New Mexico Uniform Parentage Act.
D. If a child conceived by assisted reproduction pursuant to a genetic surrogacy agreement that is not validated pursuant to Section 40-11A-813 NMSA 1978 is born and a genetic surrogate does not withdraw her consent to the agreement, consistent with Paragraph (2) of Subsection A of Section 40-11A-814 NMSA 1978, before forty-eight hours after the birth of the child, the genetic surrogate is not automatically a parent and the court shall adjudicate parentage of the child based on the best interest of the child, taking into account the factors in Subsection A of Section 40-11A-813 NMSA 1978 and the intent of the parties at the time of the execution of the agreement.
E. Each party to a genetic surrogacy agreement has standing to maintain a proceeding to adjudicate parentage pursuant to this section."
SECTION 26. A new section of the New Mexico Uniform Parentage Act, Section 40-11A-817 NMSA 1978, is enacted to read:
"40-11A-817. [NEW MATERIAL] GENETIC SURROGACY AGREEMENT--PARENTAGE OF DECEASED INTENDED PARENT.--
A. Except as otherwise provided in Section 40-11A-815 or 40-11A-816 NMSA 1978, on the birth of a child conceived by assisted reproduction pursuant to a genetic surrogacy agreement, each intended parent is, by operation of law, a parent of the child, notwithstanding the death of an intended parent during the period between the transfer of a gamete or embryo and the birth of the child.
B. Except as otherwise provided in Sections 40-11A-815 and 40-11A-816 NMSA 1978, an intended parent is not a parent of a child conceived by assisted reproduction pursuant to a genetic surrogacy agreement if the intended parent dies before the transfer of a gamete or embryo unless:
(1) the agreement provides otherwise; and
(2) the transfer of the gamete or embryo occurs not later than thirty-six months after the death of the intended parent, or the birth of the child occurs not later than forty-five months after the death of the intended parent."
SECTION 27. A new section of the New Mexico Uniform Parentage Act, Section 40-11A-818 NMSA 1978, is enacted to read:
"40-11A-818. [NEW MATERIAL] BREACH OF GENETIC SURROGACY AGREEMENT.--
A. Subject to Subsection B of Section 40-11A-814 NMSA 1978, if a genetic surrogacy agreement is breached by a genetic surrogate or one or more intended parents, the non-breaching party is entitled to the remedies available at law or in equity.
B. Specific performance is not a remedy available for breach by a genetic surrogate of a requirement of a validated or non-validated genetic surrogacy agreement that the surrogate be impregnated, terminate or not terminate a pregnancy or submit to medical procedures.
C. Except as otherwise provided in Subsection B of this section, specific performance is a remedy available for:
(1) breach of a validated genetic surrogacy agreement by a genetic surrogate of a requirement that prevents an intended parent from exercising the full rights of parentage forty-eight hours after the birth of the child; or
(2) breach by an intended parent that prevents the intended parent's acceptance of duties of parentage forty-eight hours after the birth of the child or that results in the intended parent's failure to accept those duties forty-eight hours after the birth of the child."
SECTION 28. APPLICABILITY.--The provisions of this act apply to actions commenced on or after the effective date of this act.
SECTION 29. EFFECTIVE DATE.--The effective date of the provisions of this act is January 1, 2024.
- 38 -