Bill Text: MS SB2070 | 2010 | Regular Session | Introduced
Bill Title: Mississippi Human Embryo Adoption Act; enact.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Failed) 2010-02-02 - Died In Committee [SB2070 Detail]
Download: Mississippi-2010-SB2070-Introduced.html
MISSISSIPPI LEGISLATURE
2010 Regular Session
To: Public Health and Welfare
By: Senator(s) McDaniel
Senate Bill 2070
AN ACT TO ENACT THE "MISSISSIPPI HUMAN EMBRYO ADOPTION ACT"; TO CODIFY NEW SECTION 93-17-41, MISSISSIPPI CODE OF 1972, WHICH ESTABLISHES THE TITLE OF THE ACT; TO CODIFY NEW SECTION 93-17-43, MISSISSIPPI CODE OF 1972, TO STATE LEGISLATIVE FINDINGS RELATING TO THE TRANSFER OF HUMAN EMBRYOS AND THE PURPOSES OF THE ACT; TO CODIFY NEW SECTION 93-17-45, MISSISSIPPI CODE OF 1972, TO DEFINE CERTAIN TERMS USED IN THE ACT; TO CODIFY NEW SECTION 93-17-47, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT THE TRANSFER OF HUMAN EMBRYOS MUST BE ACCOMPLISHED UNDER THE STATE ADOPTION STATUTES AND TO ESTABLISH CERTAIN CRITERIA SPECIFICALLY FOR THE TRANSFER OF HUMAN EMBRYOS; TO CODIFY NEW SECTION 93-17-2, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT THE TERMS "MINOR" AND "CHILD," AS USED IN THE ADOPTION LAWS, INCLUDE A HUMAN EMBRYO; TO AMEND SECTION 93-17-3, MISSISSIPPI CODE OF 1972, TO ESTABLISH THE JURISDICTION OF MISSISSIPPI COURTS OVER PROCEEDINGS FOR THE ADOPTION OF A FROZEN HUMAN EMBRYO WHICH IS LOCATED IN A LABORATORY OR FACILITY IN MISSISSIPPI; TO AMEND SECTION 93-17-5, MISSISSIPPI CODE OF 1972, TO REQUIRE THE GENETIC PARENTS OF THE FROZEN EMBRYO TO CONSENT TO THE ADOPTION CONTEMPORANEOUSLY WITH RELINQUISHING ALL RIGHTS TO THE EMBRYO; TO AMEND SECTION 93-17-13, MISSISSIPPI CODE OF 1972, TO REQUIRE THE FINAL DECREE IN PROCEEDINGS FOR THE ADOPTION OF A HUMAN EMBRYO TO BE ENTERED BEFORE IMPLANTATION OF THE EMBRYO OCCURS; TO AMEND SECTION 93-17-15, MISSISSIPPI CODE OF 1972, TO PROHIBIT ANY ACTION TO SET A SIDE A FINAL DECREE OF ADOPTION OF A HUMAN EMBRYO AFTER THE EMBRYO HAS BEEN IMPLANTED; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. The following shall be codified as Section 93-17-41, Mississippi Code of 1972:
93-17-41. Sections 93-17-41 through 93-17-47 of this act shall be known and may be cited as the "Mississippi Human Embryo Adoption Act."
SECTION 2. The following shall be codified as Section 93-17-43, Mississippi Code of 1972:
93-17-43. (1) The Legislature finds that:
(a) There are upwards of Four Hundred Thousand (400,000) cryopreserved (frozen) human embryos in laboratories and facilities in the United States, and that number is growing annually;
(b) There is scant guidance from federal or state law for the disposition of frozen embryos given that few states have legislation governing the disposition of frozen embryos;
(c) The lack of clear guidance in federal or state law has resulted in numerous bitterly contested lawsuits stemming from disputes over the status of and rights to frozen embryos, including cases decided by the highest courts of Massachusetts, New Jersey, New York, Tennessee and Washington;
(d) Embryo transfer is a haphazard process, with little consistency between in vitro fertilization (IVF) clinics and the lack of dispositional agreements, and the process provides insufficient protection for the best interests of the child and insufficient certainty for the rights and responsibilities of genetic and adoptive parents;
(e) The number of embryo transfers completed each year is unknown, and nearly all occur without the oversight of established adoption laws and procedures;
(f) It is doubtful that embryo adoption will lead to the production of more stored embryos because of the medical burden and financial expense of conceiving embryos;
(g) Despite growing use of the term "embryo adoption," the term, in the absence of legal changes, may create a false sense of security for donors who believe that they have legally terminated their parental rights and responsibilities when they transfer an embryo to adoptive parents;
(h) Bringing embryo transfer within the auspices of adoption procedures will create greater protection for the child, greater certainty for the termination of rights of the genetic parents and greater certainty for the parental rights of the adopting parents; and
(i) Since assisted reproductive technologies (ART) create the possibility that a child might have no parents or more than two (2) parents (with sperm donors, egg donors, gestational surrogates and commissioning couples), applying adoption procedures to embryo donation will help to ensure that a child does not have more than two (2) legally recognized parents at a time.
(2) The following are the purposes of Sections 93-17-41 through 93-17-47:
(a) To clarify the rights of genetic and adoptive parents;
(b) To apply established procedures in adoption law to embryo adoption;
(c) To clarify the legal status of children placed for adoption as embryos; and
(d) To promote the best interests of the child.
SECTION 3. The following shall be codified as Section 93-17-45, Mississippi Code of 1972:
93-17-45. As used in Sections 93-17-41 through 93-17-47, the following words and phrases have the meanings ascribed in this section unless the context clearly indicates otherwise:
(a) "Human embryo" or "embryo" means an individual genetically complete organism (fertilized ovum) of the species homo sapiens, from the single cell stage to eight (8) weeks development.
(b) "Embryo transfer" means the relinquishment of rights and responsibilities by the genetic parent or parents of a human embryo and the acceptance of those rights and responsibilities by an adopting parent or parents.
SECTION 4. The following shall be codified as Section 93-17-47, Mississippi Code of 1972:
93-17-47. (1) A proceeding for the transfer of a human embryo from genetic to adoptive parents in the State of Mississippi must be conducted pursuant to this section and the provisions governing adoption proceedings set forth in this chapter.
(2) A petition for the transfer of a human embryo must be accompanied by a sworn statement from the genetic mother and father, unless the embryo was derived from donor gametes, in which all rights to the embryo are surrendered. The written surrender of rights to the embryo shall cancel any prior written agreement governing the future disposition of the embryo.
(3) The relinquishment of rights by the genetic mother and father, unless the embryo was derived from donor gametes, must take place before implantation of the embryo being transferred occurs.
SECTION 5. The following shall be codified as Section 93-17-2, Mississippi Code of 1972:
93-17-2. As used in this chapter, the terms "minor," "child" and "minor child" include a human embryo.
SECTION 6. Section 93-17-3, Mississippi Code of 1972, is amended as follows:
93-17-3. (1) Except as otherwise provided in subsections (2) and (3), a court of this state has jurisdiction over a proceeding for the adoption of a minor commenced under this chapter if:
(a) Immediately before commencement of the proceeding, the minor lived in this state with a parent, a guardian, a prospective adoptive parent or another person acting as parent, for at least six (6) consecutive months, excluding periods of temporary absence, or, in the case of a minor under six (6) months of age, lived in this state from soon after birth with any of those individuals and there is available in this state substantial evidence concerning the minor's present or future care;
(b) Immediately before commencement of the proceeding, the prospective adoptive parent lived in this state for at least six (6) consecutive months, excluding periods of temporary absence, and there is available in this state substantial evidence concerning the minor's present or future care;
(c) The agency that placed the minor for adoption is licensed in this state and it is in the best interest of the minor that a court of this state assume jurisdiction because:
(i) The minor and the minor's parents, or the minor and the prospective adoptive parent, have a significant connection with this state; and
(ii) There is available in this state substantial evidence concerning the minor's present or future care;
(d) The minor and the prospective adoptive parent are physically present in this state and the minor has been abandoned or it is necessary in an emergency to protect the minor because the minor has been subjected to or threatened with mistreatment or abuse or is otherwise neglected; * * *
(e) The subject of the adoption is a frozen human embryo in a laboratory or other facility in this state; or
(f) It appears that no other state would have jurisdiction under prerequisites substantially in accordance with paragraphs (a) through (e), or another state has declined to exercise jurisdiction on the ground that this state is the more appropriate forum to hear a petition for adoption of the minor, and it is in the best interest of the minor that a court of this state assume jurisdiction.
(2) A court of this state may not exercise jurisdiction over a proceeding for adoption of a minor if, at the time the petition for adoption is filed, a proceeding concerning the custody or adoption of the minor is pending in a court of another state exercising jurisdiction substantially in conformity with the Uniform Child Custody Jurisdiction Act or this section unless the proceeding is stayed by the court of the other state.
(3) If a court of another state has issued a decree or order concerning the custody of a minor who may be the subject of a proceeding for adoption in this state, a court of this state may not exercise jurisdiction over a proceeding for adoption of the minor unless:
(a) The court of this state finds that the court of the state which issued the decree or order:
(i) Does not have continuing jurisdiction to modify the decree or order under jurisdictional prerequisites substantially in accordance with the Uniform Child Custody Jurisdiction Act or has declined to assume jurisdiction to modify the decree or order; or
(ii) Does not have jurisdiction over a proceeding for adoption substantially in conformity with subsection (1)(a) through (e) or has declined to assume jurisdiction over a proceeding for adoption; and
(b) The court of this state has jurisdiction over the proceeding.
(4) Any person may be adopted in accordance with the provisions of this chapter in termtime or in vacation by an unmarried adult or by a married person whose spouse joins in the petition. The adoption shall be by sworn petition filed in the chancery court of the county in which the adopting petitioner or petitioners reside or in which the child to be adopted resides or was born, or was found when it was abandoned or deserted, or in which the home is located to which the child has been surrendered by a person authorized to so do. The petition shall be accompanied by a doctor's or nurse practitioner's certificate showing the physical and mental condition of the child to be adopted and a sworn statement of all property, if any, owned by the child. In addition, the petition shall be accompanied by affidavits of the petitioner or petitioners stating the amount of the service fees charged by any adoption agencies or adoption facilitators used by the petitioner or petitioners and any other expenses paid by the petitioner or petitioners in the adoption process as of the time of filing the petition. If the doctor's or nurse practitioner's certificate indicates any abnormal mental or physical condition or defect, the condition or defect shall not, in the discretion of the chancellor, bar the adoption of the child if the adopting parent or parents file an affidavit stating full and complete knowledge of the condition or defect and stating a desire to adopt the child, notwithstanding the condition or defect. The court shall have the power to change the name of the child as a part of the adoption proceedings. The word "child" in this section shall be construed to refer to any person to be adopted, including an adult or a human embryo being transferred from genetic to adoptive parents.
(5) Adoption by couples of the same gender is prohibited.
(6) No person may be adopted before a court-ordered home study of the prospective adopting parties is satisfactorily completed if required by Section 93-17-11.
SECTION 7. Section 93-17-5, Mississippi Code of 1972, is amended as follows:
93-17-5. (1) Except as otherwise provided in this section, there shall be made parties to the proceeding by process or by the filing therein of a consent to the adoption proposed in the petition, which consent shall be duly sworn to or acknowledged and executed only by the following persons, but not before seventy-two (72) hours after the birth of the child:
(a) The parents, or parent, if only one (1) parent, though either is under the age of twenty-one (21) years; * * *
(b) In the event both parents are dead, then any two (2) adult kin of the child within the third degree computed according to the civil law, provided that, if one of such kin is in possession of the child, he or she shall join in the petition or be made a party to the suit; or
(c) The guardian ad litem of an abandoned child, upon petition showing that the names of the parents of such child are unknown after diligent search and inquiry by the petitioners. In addition to the above, there shall be made parties to any proceeding to adopt a child, either by process or by the filing of a consent to the adoption proposed in the petition, the following:
(i) Those persons having physical custody of such child, except persons having such child as foster parents as a result of placement with them by the Department of Human Services of the State of Mississippi.
(ii) Any person to whom custody of such child may have been awarded by a court of competent jurisdiction of the State of Mississippi.
(iii) The agent of the county Department of Human Services of the State of Mississippi that has placed a child in foster care, either by agreement or by court order.
(2) Such consent may also be executed and filed by the duly authorized officer or representative of a home to whose care the child has been delivered. The child shall join the petition by its next friend.
(3) In the case of a child born out of wedlock, the father shall not have a right to object to an adoption unless he has demonstrated, within the period ending thirty (30) days after the birth of the child, a full commitment to the responsibilities of parenthood. Determination of the rights of the father of a child born out of wedlock may be made in proceedings pursuant to a petition for determination of rights as provided in Section 93-17-6.
(4) If such consent is not filed, then process shall be had upon the parties as provided by law for process in person or by publication, if they are nonresidents of the state or are not found therein, after diligent search and inquiry, or are unknown after diligent search and inquiry; however, the court or chancellor in vacation may fix a date in termtime or in vacation to which process may be returnable and shall have power to proceed in termtime or vacation. In any event, if the child is more than fourteen (14) years of age, a consent to the adoption, sworn to or acknowledged by the child, shall also be required or personal service of process shall be had upon the child in the same manner and in the same effect as if it were an adult.
(5) Whenever the adoption proceeding involves the transfer of a frozen human embryo, consent to the adoption by the genetic mother and father, unless the embryo was derived from donor gametes, must be given contemporaneously with the statement relinquishing all rights by the genetic parent or parents which is required to accompany the petition under Section 93-17-47.
SECTION 8. Section 93-17-13, Mississippi Code of 1972, is amended as follows:
93-17-13. A final decree of adoption shall not be entered before the expiration of six (6) months from the entry of the interlocutory decree except: (a) when a child is a stepchild of a petitioner or is related by blood to the petitioner within the third degree according to the rules of the civil law or in any case in which the chancellor, in the exercise of his discretion, shall determine from all the proceedings and evidence in the cause that the six-month waiting period is not necessary or required for the benefit of the court, the petitioners or the child to be adopted, and shall so adjudicate in the decree entered in the cause, in either of which cases the final decree may be entered immediately without any delay and without an interlocutory decree; (b) when the child has resided in the home of any petitioner prior to the granting of the interlocutory decree, in which case the court may, in its discretion, shorten the waiting period by the length of time the child has thus resided; or (c) when the proceeding involves the adoption of a human embryo, in which case the final decree may be entered immediately without delay and without an interlocutory decree. In no event may the final decree in a proceeding for the adoption of a human embryo be entered after implantation of the embryo has occurred.
The final decree shall adjudicate, in addition to such other provisions as may be found by the court to be proper for the protection of the interests of the child, and its effect, unless otherwise specifically provided, shall be that: (a) the child shall inherit from and through the adopting parents and shall likewise inherit from the other children of the adopting parents to the same extent and under the same conditions as provided for the inheritance between brothers and sisters of the full blood by the laws of descent and distribution of the State of Mississippi, and that the adopting parents and their other children shall inherit from the child, just as if such child had been born to the adopting parents in lawful wedlock; (b) the child and the adopting parents and adoptive kindred are vested with all of the rights, powers, duties and obligations, respectively, as if such child had been born to the adopting parents in lawful wedlock, including all rights existing by virtue of Section 11-7-13; * * * however, * * * inheritance by or from the adopted child shall be governed by subsection (a) above; (c) that the name of the child shall be changed if desired; and (d) that the natural parents and natural kindred of the child shall not inherit by or through the child except as to a natural parent who is the spouse of the adopting parent, and all parental rights of the natural parent, or parents, shall be terminated, except as to a natural parent who is the spouse of the adopting parent. Nothing in this chapter shall restrict the right of any person to dispose of property under a last will and testament.
A final decree of adoption shall not be entered until a court-ordered home study is satisfactorily completed, if required in Section 93-17-11.
SECTION 9. Section 93-17-15, Mississippi Code of 1972, is amended as follows:
93-17-15. No action shall be brought to set aside any final decree of adoption, whether granted upon consent or personal process or on process by publication, except within six (6) months of the entry thereof; however, if the final decree of adoption is for the transfer of a human embryo, no action may be brought to set aside the decree after implantation of the embryo has occurred.
SECTION 10. This act shall take effect and be in force from and after July 1, 2010.
