A. As used in this section:

(1) "birth mother" means a woman, other than a gestational carrier pursuant to Section 45-2-121 NMSA 1978, who gives birth to a child of assisted reproduction. The term is not limited to a woman who is the child's genetic mother;

(2) "child of assisted reproduction" means a child conceived by means of assisted reproduction by a woman other than a gestational carrier pursuant to Section 45-2-121 NMSA 1978; and

(3) "third-party donor" means an individual who produces eggs or sperm used for assisted reproduction, whether or not for consideration. The term does not include:

(a) a husband who provides sperm or a wife who provides eggs that are used for assisted reproduction by the wife;

(b) the birth mother of a child of assisted reproduction; or

(c) an individual who has been determined pursuant to Subsection E or F of this section to have a parent-child relationship with a child of assisted reproduction.

B. A parent-child relationship does not exist between a child of assisted reproduction and a third-party donor.

C. A parent-child relationship exists between a child of assisted reproduction and the child's birth mother.

D. Except as otherwise provided in Subsections I and J of this section, a parent-child relationship exists between a child of assisted reproduction and the husband of the child's birth mother if the husband provided the sperm that the birth mother used during his lifetime for assisted reproduction.

E. A birth certificate identifying an individual other than the birth mother as the other parent of a child of assisted reproduction presumptively establishes a parent-child relationship between the child and that individual.

F. Except as otherwise provided in Subsections G, I and J of this section, and unless a parent-child relationship is established pursuant to Subsection D or E of this section, a parent-child relationship exists between a child of assisted reproduction and an individual other than the birth mother who consented to assisted reproduction by the birth mother with intent to be treated as the other parent of the child. Consent to assisted reproduction by the birth mother with intent to be treated as the other parent of the child is established if the individual:

(1) before or after the child's birth, signed a record that, considering all the facts and circumstances, evidences the individual's consent; or

(2) in the absence of a signed record pursuant to Paragraph (1) of this subsection:

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

(b) intended to function as a parent of the child no later than two years after the child's birth but was prevented from carrying out that intent by death, incapacity or other circumstances; or

(c) intended to be treated as a parent of a posthumously conceived child if that intent is established by clear and convincing evidence.

G. For the purpose of Paragraph (1) of Subsection F of this section, neither an individual who signed a record more than two years after the birth of the child nor a relative of that individual who is not also a relative of the birth mother inherits from or through the child unless the individual functioned as a parent of the child before the child reached eighteen years of age.

H. For the purpose of Paragraph (2) of Subsection F of this section, the following rules apply:

(1) if the birth mother is married and no divorce proceeding is pending, in the absence of clear and convincing evidence to the contrary, her spouse satisfies Subparagraph (a) or (b) of Paragraph (2) of Subsection F of this section; and

(2) if the birth mother is a surviving spouse and at her deceased spouse's death no divorce proceeding was pending, in the absence of clear and convincing evidence to the contrary, her deceased spouse satisfies Subparagraph (b) or (c) of Paragraph (2) of Subsection F of this section.

I. If a married couple is divorced before placement of eggs, sperm or embryos, a child resulting from the assisted reproduction is not a child of the birth mother's former spouse, unless the former spouse consented in a record that if assisted reproduction were to occur after divorce, the child would be treated as the former spouse's child.

J. If, in a record, an individual withdraws consent to assisted reproduction before placement of eggs, sperm or embryos, a child resulting from the assisted reproduction is not a child of that individual, unless the individual subsequently satisfies Subsection F of this section.

K. If, pursuant to this section, an individual is a parent of a child of assisted reproduction 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:

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

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

History: 1978 Comp., § 45-2-120, enacted by Laws 2011, ch. 124, § 18.

Effective dates. — Laws 2011, ch. 124, § 104 made Laws 2011, ch. 124, § 18 effective January 1, 2012.