North Dakota Code 30.1-04-20 – (2-121) Parent-child relationship – Child born to a gestational carrier
1. In this section:
Terms Used In North Dakota Code 30.1-04-20
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- Individual: means a human being. See North Dakota Code 1-01-49
- State: when applied to the different parts of the United States, includes the District of Columbia and the territories. See North Dakota Code 1-01-49
a. “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 5.
b. “Gestational carrier” means a woman who is not an intended parent and who gives birth to a child under a gestational agreement. The term is not limited to a woman who is the child’s genetic mother.
c. “Gestational child” means a child born to a gestational carrier under a gestational agreement.
d. “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.
2. A parent-child relationship is conclusively established by a court order designating the parent or parents of a gestational child.
3. A parent-child relationship between a gestational child and the child’s gestational carrier does not exist unless the gestational carrier is:
a. Designated as a parent of the child in a court order described in subsection 2; or
b. The child’s genetic mother and a parent-child relationship does not exist with an individual other than the gestational carrier under this section.
4. In the absence of a court order under subsection 2, a parent-child relationship exists between a gestational child and an intended parent who:
a. Functioned as a parent of the child no later than two years after the child’s birth; or b. Died while the gestational carrier was pregnant if:
(1) There were two intended parents and the other intended parent survived the birth of the child and functioned as a parent of the child no later than two years after the child’s birth; (2) 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) 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.
5. In the absence of a court order under subsection 2, 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 under 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 can be shown by:
a. A record, signed by the individual that, considering all the facts and circumstances, evidences the individual’s intent; or
b. Other facts and circumstances establishing the individual’s intent by clear and convincing evidence.
6. Except as otherwise provided in subsection 7, 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 subdivision b of subsection 5 if:
a. The individual, before death or incapacity, deposited the sperm or eggs that were used to conceive the child; b. When the individual deposited the sperm or eggs, the individual was married and no divorce proceedings were pending; and
c. The individual’s spouse or surviving spouse functioned as a parent of the child not later than two years after the child’s birth.
7. The presumption under subsection 6 does not apply if there is a court order under subsection 2 or a signed record that satisfies subdivision a of subsection 5.
8. If, under 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 subdivision b of subsection 1 of section 30.1-04-04 if the child is in utero not later than thirty-six months after the individual’s death or born not later than forty-five months after the individual’s death.
9. This section does not affect other law of this state regarding the enforceability or validity of a gestational agreement.