Surrogacy

What is Surrogacy

Surrogacy typically refers to the gestation of a child by a woman (the “Carrier”) who is not intended to be the child’s legal mother, and who carries the child for another couple (the “Intend Parents”).  There are two categories of surrogacy – traditional and gestational. Traditional surrogacy typically refers to a situation where the Carrier is impregnated via artificial insemination utilizing the sperm of the intended father or a donor. The Carrier’s own egg is used in the process and she is then genetically related to the child, however, regardless of this genetic connection the Carrier agrees to give the child to the Intended Parents upon its birth.   This genetic connection makes traditional surrogacy rare, as many states view this arrangement as paying biological mothers to give up custody rights to their child and consider traditional surrogacy to be against public policy.  On the other hand, Gestational Surrogacy refers to a situation in which the Carrier is impregnated via in vitro fertilization using the genetic materials provided by the Intended Parents.  Unlike traditional surrogacy where the Carrier provides the egg, in gestational surrogacy the egg and sperm are provided by the Intended Parents, donors, or a combination of both.

Why Pennsylvania?

Despite lacking a statutory framework governing surrogacy, Pennsylvania is considered to be an excellent state for gestational surrogacy for several reasons.

There is a developing yet strong case law in Pennsylvania that can be viewed as favorable towards surrogacy generally, and the contractual nature of the surrogacy relationship.  In 2006, the Superior Court ruled against a Carrier in a gestational surrogacy arrangement who was attempting to assert legal custody over the children she carried.  See J.F. v. D.B., 897 A.2d 1261 (Pa. Super. Ct. 2006).  While the case contained several factual
complexities, the Superior Court decided that the Carrier lacked “legal standing” to assert her custody claim.  Moreover, the Superior Court would not hold the Carrier as the legal mother simply because she gestated and birthed the children. However, the Superior did note that it’s holding was limited to the conclusion that the Carrier lacked standing, and the court declined to comment on the validity of surrogacy contracts.  This decision was denied review by the Pennsylvania Supreme Court and has since become an important foundation for Pennsylvania Surrogacy Law.  In 2015 the Pennsylvania Superior Court returned to the issue of surrogacy contracts and held that such agreements are valid and enforceable legal contracts.  In In Re Baby S. Appeal of S.S, 2015 Pa. Super. 244, the Superior Court was asked to determine whether surrogacy contracts were void as against public policy in the Commonwealth.  The court denied the argument that surrogacy contracts were invalid and affirmed the lower

In 2015 the Pennsylvania Superior Court returned to the issue of surrogacy contracts and held that such agreements are valid and enforceable legal contracts.  In In Re Baby S. Appeal of S.S, 2015 Pa. Super. 244, the Superior Court was asked to determine whether surrogacy contracts were void as against public policy in the Commonwealth.  The court denied the argument that surrogacy contracts were invalid and affirmed the lower court’s ruling that held “we can state, without any hesitation, that the contract here at issue must be enforced. The parties all had the benefit of able counsel before entering into it. Every detail of the process was spelled out to the nth degree…Baby S. is in the world only because of this and other related contracts which [the Intended Mother] signed willingly and voluntarily.”

It is also important to note that the courts of Pennsylvania have recognized and affirmed the rights of Same-Sex couples to adopt children and have treated surrogacy cases involving same-sex intended parents equally as with opposite-sex cases.

Department of Health’s Assisted Conception Birth Registration Procedures

In October of 2003, the Pennsylvania Department of Health developed the “Assisted Conception Birth Registration” procedures setting forth a uniform statewide procedure for issuing birth certificates for children conceived through assisted reproduction.  This procedure allows the Intended Parents to obtain an original birth certificate listing them as the child’s parents.  The Assisted Conception Birth Registration Procedure requires first that a “Certificate of Live Birth” is completed at the time of birth by the Carriers midwife or obstetrician listing the Carrier’s information.  This form may also list the genetic father’s (if one of the Intend Parents) information.  The Carries midwife or obstetrician must also complete a “Supplemental Report of Assisted Conception” which details the Intended Parents information.  The Assisted Conception Birth Registration Procedures also require the Intended Parents to obtain a court order, often referred to as a “Pre Birth Order”.  All of these forms, including the court order, must be submitted to the Pennsylvania Department of Health within six months from the date of birth.The final requirement of the Assisted Conception Birth Registration Procedure requires the Intended Parents to obtain a court order from an Orphans Court judge in the county where the child is born or where the Intended Parents reside.  This court order may be obtained before the birth of the child; however, it must state that any certified copies of the birth certificate should reflect the names of the intended parents.  In order to obtain this court order, or Assisted

The final requirement of the Assisted Conception Birth Registration Procedure requires the Intended Parents to obtain a court order from an Orphans Court judge in the county where the child is born or where the Intended Parents reside.  This court order may be obtained before the birth of the child; however, it must state that any certified copies of the birth certificate should reflect the names of the intended parents.  In order to obtain this court order, or Assisted Conception Parentage Decree, a detailed petition must be filed with the court.  While the DOH procedures are non-binding and discretionary upon each judge, the Superior Court of Pennsylvania has recognized and supported the procedure.  See In re I.L.P., 965 A.2d 951 (Pa. Super. Ct. 2009)(also worth noting that the In re I.LP. case involved a same-sex couple as Intended Parents).  Additionally, pre-birth orders have been issued in more than 30 counties in Pennsylvania.