HB1542 - Conference Report

SECTION 1. (1) This section shall be known and may be cited as the "Chris McDill Law."

(2) For purposes of this section, the following words shall have the meaning herein ascribed unless the context clearly requires otherwise:

(a) "Assisted reproductive technology" means a method of preserving fertility or attempting pregnancy through means other than by sexual intercourse, including, but not limited to, the following:

(i) Intrauterine, intracervical, or vaginal insemination;

(ii) Donation of gametes;

(iii) Donation of embryos;

(iv) Receiving of gametes;

(v) Receiving of embryos;

(vi) In vitro fertilization;

(vii) Embryo transfer; and

(viii) Intracytoplasmic sperm injection.

(b) "Personal property" means goods and chattels or personal estate.

(3) When any person shall die possessed of personal property not bequeathed before the start of a pregnancy by assisted reproductive technology resulting in the birth of an individual who lives at least one hundred twenty (120) hours after birth, that individual is deemed to be living at the time of the decedent's death and shall be entitled to a child's part of the decedent's personal property as provided in this section if the decedent's personal representative and the court, not later than six (6) months after the decedent's death, received notice or had actual knowledge of an intent to use the decedent's genetic material in the assisted reproduction; and

(a) The embryo was in utero not later than thirty-six (36) months after the decedent's death; or

(b) The individual was born not later than forty-five (45) months after the decedent's death.

(4) (a) This section shall only be applicable if there is a record signed by the decedent and the person who intends to use the decedent's genetic material in the assisted reproductive technology that the decedent consented to the use of the decedent's genetic material in assisted reproductive technology after the death of the decedent.

(b) There shall be a rebuttable presumption that the decedent did not consent to the use of the decedent's genetic material in the assisted reproductive technology if the decedent was divorced or legally separated at the time of the decedent's death from the person who wishes to use the decedent's genetic material in the assisted reproductive technology.

(5) An individual deemed to be living at the time of the decedent's death under subsection (3) of this section shall be entitled to a child's part of the decedent's personal property, or the equivalent value thereof. If more than one (1) individual is deemed to be living at the time of the decedent's death under subsection (3) of this section, each individual shall be entitled to an equal share of a child's part of the decedent's personal property, or the equivalent value thereof.

(6) (a) Upon receipt of notice or the actual knowledge required under subsection (3) of this section, the court shall:

(i) Set aside a child's part of the decedent's personal property, or the equivalent value thereof, for distribution to an individual deemed to be living at the time of the decedent's death under subsection (3) of this section;

(ii) Distribute the remainder of the decedent's estate, except for the set-aside child's part of the decedent's personal property, or the equivalent value thereof, according to the statutes of descent and distribution; and

(iii) Enter an order closing the estate for all purposes except the distribution of the set-aside part of the decedent's personal property or the equivalent value thereof.

(b) If an individual is deemed to be living at the time of the decedent's death under subsection (3) of this section, the court shall distribute the set-aside portion of the decedent's personal estate according to subsection (5) of this section. If no individual is deemed living at the time of the decedent's death under subsection (3) of this section, the court shall distribute the set aside portion of the decedent's personal estate as is otherwise provided according to the statutes of descent and distribution.

(7) It is the intent of the Legislature that an individual deemed to be living at the time of the decedent's death under subsection (3) of this section shall be eligible for federal benefits under subchapter II of Chapter 7 of Title 41 of the United States Code.

SECTION 2. Section 91-1-11, Mississippi Code of 1972, is amended as follows:

91-1-11. (1) Except as provided in subsection (2) of this section, when any person shall die possessed of goods and chattels or personal estate not bequeathed, the same shall descend to and be distributed among his or her heirs in the same manner that real estate not devised descends.

(2) When any person shall die possessed of goods and chattels or personal estate not bequeathed, the provisions of Section 1 of this act are applicable in determining whether a child of a decedent is living at the time of the decedent's death.

SECTION 3. Section 91-1-7, Mississippi Code of 1972, is amended as follows:

91-1-7. (1) If a husband dies intestate and * * * do does not leave children or descendants of children, his widow shall be entitled to his entire estate, real and personal, in fee simple, after payment of his debts; but where the deceased husband * * * ~~shall~~ leaves a child or children by that or a former marriage, or descendants of such child or children, his widow shall have a child's part of his estate, in either case in fee simple. If a married woman dies owning any real or personal estate not disposed of, it shall descend to her husband and her children or their descendants if she * * * ~~have~~ has any surviving her, either by a former husband or by the surviving husband, in equal parts, according to the rules of descent. If she * * * ~~have~~ has children and there also * * * be are descendants of other children who have died before the mother, the descendants shall inherit the share to which the parent would have been entitled if living, as coheirs with the surviving children. If she * * * ~~have~~ has no children or descendants of them, then the husband shall inherit all of her property.

(2) The provisions of Section 1 of this act are applicable in determining whether a child of a decedent is living at the time of the decedent's death.

SECTION 4. (1) Notwithstanding any other provision of law:

(a) No criminal prosecution for the damage to or death of an unimplanted embryo shall be brought or maintained against any patient, individual, entity or manufacturer when providing or receiving products and/or services related to assisted reproductive technology as defined in Section 5(a) of this act.

(b) No civil cause of action shall be brought or maintained against any patient, individual or entity when receiving products or providing or receiving services related to assisted reproductive technology as defined in Section 5(a) of this act unless such individual or entity has breached the relevant standard of care.

(c) In any civil action or suit brought or maintained against any manufacturer, individual or entity providing products and/or services related to assisted reproductive technology, damages shall be limited to economic damages only, calculated as the price paid for the impacted service.

(2) This section shall apply retroactively to any act, omission, or course of services rendered on or before the effective date of this act.

SECTION 5. For purposes of Sections 5 through 9 of this act, the following terms shall have the meanings ascribed herein unless the context clearly requires otherwise:

(a) "Assisted reproductive technology" means a method of preserving fertility or attempting pregnancy through means other than by sexual intercourse including, but not limited to the following:

(i) Intrauterine, intracervical, or vaginal insemination;

(ii) Donation of gametes;

(iii) Donation of embryos;

(iv) Receiving of gametes;

(v) Receiving of embryos;

(vi) In vitro fertilization;

(vii) Embryo transfer; and

(viii) Intracytoplasmic sperm injection.

(b) "Child" means an individual born from a pregnancy achieved by means of medically assisted fertility treatment in furtherance of a collaborative reproduction agreement.

(d) "Sperm" means the male reproductive cell.

(e) "Gamete" means a male sperm or a female egg.

(f) "Fertilization" means the initial union of an egg and sperm.

(g) "Gestational carrier" means a woman who is at least twenty-one (21) years of age and who voluntarily contracts to become pregnant by means of assisted reproductive technology without the use of her egg and who agrees to terminate her parental rights and responsibilities to a resulting child in favor of the intended parent(s). As it relates to the termination of parental rights and the determination of parentage under Section 9 of this act, the term "gestational carrier" includes the woman's spouse if applicable. The term "gestational carrier" does not include a woman who agrees to become pregnant through providing her own egg and is also the person carrying the embryo.

(h) "Intended parent" means an individual or individuals who, as evidenced by a gestational carrier agreement, intend to assert parental rights and responsibilities for a child conceived by assisted reproduction, regardless of whether the child is biologically related to the intended parent.

(i) "Embryo transfer" means the transfer of an embryo that is fertilized by means of assisted reproductive technology to an individual's uterus.

(j) "Embryo" means the product of fertilization of an egg by a sperm.

(k) "Gestational carrier agreement" means a written agreement between a gestational carrier and one or more intended parents that specifies the intent of the parties as to their rights and responsibilities in the gestational carrier arrangement, consistent with the provisions of this act.

SECTION 6. The donor of any egg, sperm, or embryo, upon written evidence of intent to donate, or in the absence of written evidence, upon clear and convincing evidence of intent to donate, shall relinquish all parental rights and obligations with respect to the donation or any resulting child or children. Reasonable compensation directly related to the donation of eggs, sperm, and embryos shall be permitted.

SECTION 7. (1) Individuals may enter into a gestational carrier agreement as specified in this section. A gestational carrier agreement shall include, at a minimum, the following terms:

(a) That the gestational carrier agrees to become pregnant by means of assisted reproductive technology, to bear a child or children, and to terminate any parental rights and responsibilities to the resulting child or children through a pre-birth legal proceeding determining parentage in the intended parent rather than the gestational carrier, pursuant to Section 9 of this act;

(b) That the gestational carrier agrees to submit to reasonable medical evaluation and treatment and to adhere to reasonable medical instructions about her prenatal health;

(c) That the intended parent agree to accept custody of and to assert full parental rights and responsibilities for the child or children immediately upon birth, regardless of any impairment of the child or children;

(d) That the intended parent shall be the sole source of consent with respect to medical decisions regarding the child or children carried by gestational carrier, with due consideration to the health of the gestational carrier;

(e) That the intended parent shall be consulted with during all aspects of the pregnancy with the gestational carrier's treating physician or medical provider;

(f) That the gestational carrier shall be the sole source of consent with regard to medical decisions which affect her health, whether related to the pregnancy or otherwise, as long as any decision to terminate the pregnancy shall only be made where necessary for the preservation of the gestational carrier's life;

(g) That the gestational carrier agrees to relinquish any parental rights and to proceed with pre-birth judicial proceedings prescribed under Section 9 of this act; and

(h) That the gestational carrier agreement may be terminated at any time by any of the parties upon medical confirmation that the gestational carrier is not pregnant at the time of termination.

(2) A gestational carrier agreement may not affect final determination of parentage of a child. Final determination of parentage shall be made in accordance with Section 9 of this act.

SECTION 8. (1) An intended parent and a gestational carrier shall be represented by separate and independent counsel in any matter relating to a gestational carrier agreement or judicial determination of parental rights pursuant to Section 9 of this act.

(2) Doctors, psychologists, attorneys and other professionals may receive compensation for their professional services, such as providing medical services and procedures, legal advice in structuring and negotiating a gestational carrier agreement, determination of parentage through a court proceeding, or counseling.

(3) Compensation may be paid to a person acting as the gestational carrier as compensation for medical risks, physical discomfort, inconvenience, reimbursement of actual costs and living expenses, and the responsibilities she is undertaking in connection with her participation in the gestational carrier agreement.

(4) Compensation paid to a person acting as the gestational carrier shall not exceed the duration of the pregnancy and recuperative period of up to eight (8) weeks after the birth of any resulting children or upon release of the gestational carrier from medical care by her treating physician, whichever is later.

(5) The provisions Sections 5 through 9 of this act shall not be construed to authorize any abortion procedure or allow or require access for any person to obtain an abortion.

SECTION 9. (1) Before the birth of a child conceived by assisted reproductive technology under a gestational carrier agreement, a party to the agreement may commence a proceeding in chancery court for an order or judgment:

(a) Declaring that each intended parent is a legal parent of the child and ordering that parental rights and duties vest immediately upon the birth of the child exclusively in each intended parent;

(b) Declaring that the gestational carrier and the gestational carrier's spouse, if applicable, are not the legal parents of the child;

(c) Authorizing the Mississippi State Department of Health to issue a birth certificate for the child or children upon birth; and

(d) Including other relief the court determines necessary and proper.

(2) All parties to the gestational carrier agreement must join in such proceeding.

(3) Venue for judicial determination of parentage under this section shall be proper in the chancery court of the county of the birth of the child or children, county of the gestational carrier's residence or the county of the residence of the intended parent.

(4) All judicial proceedings under Section 5 through 9 of this act shall be confidential and shall be held in closed court as is provided for adoptions in Section 93-17-25.

SECTION 10. (1) As used in this section, the following terms shall have the meaning herein ascribed unless the context clearly requires otherwise:

(a) "Health care provider" means any entity or individual, including, but not limited to, any physician, advanced practice registered nurse, physician assistant, pharmacist, health care support personnel, and any other individual that is:

(i) Engaged or seeks to engage in the delivery of assisted reproductive technology treatments, procedures or services, including through the provision of evidence-based information, counseling, referrals or items and services that relate to, aid in or provide fertility treatment; and

(ii) Licensed, certified or otherwise authorized to engage in the delivery of such assisted reproductive technology treatments, procedures or services, if such licensure, certification or other authorization is required by state law.

(b) "Assisted reproductive technology" means a method of preserving fertility or attempting pregnancy through means other than by sexual intercourse including, but not limited to the following:

(i) Intrauterine, intracervical, or vaginal insemination;

(ii) Donation of gametes;

(iii) Donation of embryos;

(iv) Receiving of gametes;

(v) Receiving of embryos;

(vi) In vitro fertilization;

(vii) Embryo transfer; and

(viii) Intracytoplasmic sperm injection.

(c) "Patient" means any individual who receives or seeks to receive assisted reproductive technology treatments, procedures or services and evidence based information, counseling, referrals or items and services that relate to, aid in or provide fertility treatment.

(2) It is the purpose of this section to permit health care providers to provide, and for patients to receive, assisted reproductive technology treatments, procedures or services without limitations or requirements that:

(a) Are more burdensome than limitations or requirements imposed on medically comparable treatments, procedures or services;

(b) Do not significantly advance reproductive health or the safety of such treatments, procedures or services; or

(3) (a) An individual has a right under this section to:

(i) Access assisted reproductive technology treatments, procedures or services;

(ii) Continue or complete an ongoing assisted reproductive technology treatment or procedure pursuant to a written plan or agreement with a health care provider; and

(iii) Retain all rights regarding the individual's reproductive genetic materials.

(b) A health care provider has a right under this section to:

(i) Perform or assist with the performance of assisted reproductive technology treatments or procedures; and

(ii) Provide or assist with the provision of evidence-based information related to assisted reproductive technology treatments, procedures or services.

(c) A health insurance provider has a right under this section to cover assisted reproductive technology treatments or procedures.

(4) (a) Any individual or entity adversely affected by an alleged violation of subsection (3) of this section may commence a civil action against any state or local government official that enacts, implements or enforces a limitation or requirement that violates subsection (3) of this section.

(b) A health care provider may commence an action for relief on its own behalf, on behalf of the provider's staff, or on behalf of the provider's patients who are or may be adversely affected by an alleged violation of subsection (3) of this section. The court shall hold unlawful and enjoin the limitation or requirement if it is in violation of subsection (3) of this section.

(5) In any action under this section:

(a) The court may award appropriate equitable relief, including temporary, preliminary or permanent injunctive relief; and

(b) The court shall award costs of litigation, as well as reasonable attorney's fees, to any prevailing plaintiff. A plaintiff shall not be liable to a defendant for costs or attorney's fees in any nonfrivolous action under this section.

(6) In any cause of action against an individual or entity who is subject to a limitation or requirement that violates this section, in addition to the remedies specified in this section, this section shall also apply to, and may be raised as a defense by, such an individual or entity.

(7) Nothing in this section shall be construed to:

(a) Require any state or governmental entity, public or private health benefits plan, or private health insurance policy to pay for or cover assisted reproductive technology treatments, procedures or services nor require any health care provider to provide assisted reproductive technology treatments, procedures or services;

(b) Authorize any abortion procedure or allow or require access for any person to obtain an abortion;

(d) Authorize or allow human cloning, gene-editing designer babies, or creation of human-animal hybrids;

(e) Authorize or allow buying, selling, destroying or otherwise disposing of any human embryos created from assisted reproductive technology treatments or procedures; or

(f) Authorize legal actions to be brought against the Mississippi Legislature or any member of the Legislature.

(8) For purposes of this section, a health care provider shall be presumed to be acting in good faith.

SECTION 11. This act shall take effect and be in force from and after its passage.


X (SIGNED)	X (SIGNED)
Joey Hood	Brice Wiggins

X (SIGNED)	X (SIGNED)
Shanda Yates	Tyler McCaughn

X (SIGNED)	X (SIGNED)
Dana McLean	Joey Fillingane