A. As used in this section:

1. (1) "gestational agreement" means an enforceable or unenforceable agreement for assisted reproduction in which a woman agrees to carry a child to birth for an intended parent, intended parents or an individual described in Subsection E of this section;
2. (2) "gestational carrier" means a woman who is not an intended parent who gives birth to a child pursuant to a gestational agreement. The term is not limited to a woman who is the child's genetic mother;
3. (3) "gestational child" means a child born to a gestational carrier pursuant to a gestational agreement; and

4. (4) "intended parent" means an individual who entered into a gestational agreement providing that the individual will be the parent of a child born to a gestational carrier by means of assisted reproduction. The term is not limited to an individual who has a genetic relationship with the child.

   B. A parent-child relationship is conclusively established by a court order designating the parent or parents of a gestational child.

   C. A parent-child relationship between a gestational child and the child's gestational carrier does not exist unless the gestational carrier is:

5. (1) designated as a parent of the child in a court order described in Subsection B of this section; or

6. (2) the child's genetic mother and a parent-child relationship does not exist pursuant to this section with an individual other than the gestational carrier.

   D. In the absence of a court order pursuant to Subsection B of this section, a parent-child relationship exists between a gestational child and an intended parent who:

7. (1) functioned as a parent of the child no later than two years after the child's birth; or

8. (2) died while the gestational carrier was pregnant if:

   1. (a) there were two intended parents and the other intended parent functioned as a parent of the child no later than two years after the child's birth;
   2. (b) there were two intended parents, the other intended parent also died while the gestational carrier was pregnant and a relative of either deceased intended parent or the spouse or surviving spouse of a relative of either deceased intended parent functioned as a parent of the child no later than two years after the child's birth; or

   3. (c) there was no other intended parent and a relative of or the spouse or surviving spouse of a relative of the deceased intended parent functioned as a parent of the child no later than two years after the child's birth.

      E. In the absence of a court order pursuant to Subsection B of this section, a parent-child relationship exists between a gestational child and an individual whose sperm or eggs were used after the individual's death or incapacity to conceive a child pursuant to a gestational agreement entered into after the individual's death or incapacity if the individual intended to be treated as the parent of the child. The individual's intent may be shown by:

9. (1) a record signed by the individual that, considering all the facts and circumstances, evidences the individual's intent; or

10. (2) other facts and circumstances establishing the individual's intent by clear and convincing evidence.

    F. Except as otherwise provided in Subsection G of this section, and unless there is clear and convincing evidence of a contrary intent, an individual is deemed to have intended to be treated as the parent of a gestational child for purposes of Paragraph (2) of Subsection E of this section if:

11. (1) the individual, before death or incapacity, deposited the sperm or eggs that were used to conceive the child;
12. (2) when the individual deposited the sperm or eggs, the individual was married and no divorce proceeding was pending; and

13. (3) the individual's spouse or surviving spouse functioned as a parent of the child no later than two years after the child's birth.

    G. The presumption pursuant to Subsection F of this section does not apply if there is:

14. (1) a court order pursuant to Subsection B of this section; or

15. (2) a signed record that satisfies Paragraph (1) of Subsection E of this section.

    H. If, pursuant to this section, an individual is a parent of a gestational child who is conceived after the individual's death, the child is treated as in gestation at the individual's death for purposes of Paragraph (2) of Subsection A of Section 45-2-104 NMSA 1978 if the child is:

16. (1) in utero not later than thirty-six months after the individual's death; or

17. (2) born not later than forty-five months after the individual's death.

    I. This section shall apply only for the purposes of determining inheritance rights and does not affect any law of New Mexico other than the Uniform Probate Code regarding the enforceability or validity of a gestational agreement.

    J. Subject to Subsection I of this section, the Uniform Probate Code does not authorize or prohibit a gestational agreement.

History: 1978 Comp., § 45-2-121, enacted by Laws 2011, ch. 124, § 19.

ANNOTATIONS

Effective dates. — Laws 2011, ch. 124, § 104 made Laws 2011, ch. 124, § 19 effective January 1, 2012.