This week, the Pennsylvania Superior Court ruled that a Surrogacy Agreement is enforceable in Pennsylvania. In Baby S., 2015, Pa Super 244, a couple who wished to become parents agreed to use a gestational carrier to form their family through Assisted Reproductive Technology.
When one of the Intended Parents changed their mind, the question became who ultimately was responsible for and had parental rights for the child. As laws regarding Assisted Reproductive Technology continue to evolve, this case proves particularly interesting because for the first time, we see some clarity on the law regarding surrogacy arrangements in Pennsylvania.
A Gestational Carrier, also known as Gestational Surrogate, is a woman who carries a pregnancy and gives birth to a child for another woman or couple. For a woman to serve as a Gestational Carrier, an embryo (created by the process of in vitro fertilization or IVF) is implanted in her uterus. Gestational Surrogacy is the process where gametes, either from the people who want to become parents (Intended Parents) or those donated for the use of the Intended Parents, are used to create embryos which are implanted using IVF into the uterus of a woman who will carry and deliver, but not raise, the child. The Gestational Carrier is not genetically related to the child.
In this case, the couple decided to use an anonymous egg donor as they were unable to produce viable eggs to achieve pregnancy. The Intended Parents ultimately executed an Ovum Donation Agreement with an anonymous donor as well as a Gestational Carrier Agreement with the Surrogate.
The Surrogate underwent an embryo transfer which was successful and pregnancy was confirmed. Shortly before the child’s birth, the company facilitating the arrangement between the parties was notified by the Intended Mother that she refused to file the relevant paperwork to obtain a Court Order designating her and her husband as the parents of Baby S. on the birth certificate pursuant to the Pennsylvania Department of Health Policy and Procedures regarding Assisted Conception Birth Registrations. There were marital difficulties between the Intended Parents.
Due to the Intended Mother’s refusal to cooperate, the Surrogate filed for an order from Assisted Conception Birth Registration and to establish parentage by Court Order declaring the Intended Parents as the legal parents of Baby S.
However, in the absence of a pre-birth order, the surrogate was named after the birth of Baby S. as the Mother on the birth certificate and no name appeared for the Father.
The Intended Father and baby subsequently moved to California and applied for medical assistance from the State. The Surrogate then received a bill from Children’s Hospital of Philadelphia for the aftercare of Baby S. and was also contacted by the State of California regarding her potential liability for child support of Baby S.
The Intended Mother filed a response to the Surrogate’s Petition which claimed that the parties’ Gestational Carrier Contract was enforceable. After the hearing, the Trial Court entered an Order declaring the Intended Parents as the legal parents of Baby S. and authorized the Department of Health to issue an amended birth certificate in accordance with the Order. The Intended Mother filed an appeal which was addressed by the Superior Court in its Opinion of November 23, 2015, in which the Superior Court agreed with the Trial Court’s analysis that the Intended Mother did not dispute that she freely entered into the Gestational Carrier Contract and related Agreements which unambiguously stated that she and the Intended Father were the Intended Legal Parents of Baby S.
Further, the Court indicated that the Agreements were clear that the Surrogate would have no parental rights or obligation with respect to Baby S. and her sole role was that of a Gestational Carrier. The Intended Mother’s actions were also consistent with her intentions to be Baby S.’s mother and she would not have been born but for the Intended Mother’s actions and expressed agreement to be the child’s legal mother.
The Court further stated that the Intended Mother failed to meet her burden to show that the Gestational Carrier Contract is contrary to public policy in Pennsylvania, despite her emphasis on the fact that no statute recognizes the validity of such agreements. In fact, case law from the past decade reflects a growing acceptance of alternative reproductive arrangements in the Commonwealth and acknowledges the evolving role played by alternative reproductive technologies in contemporary American society. Therefore, absent an established public policy to void the Gestational Carrier Contract, the Contract remains binding and enforceable against the Intended Mother.
As a result of this decision, there is more detailed analysis and clarification as to the law for individuals who wish to form their families through Assisted Reproductive Technology in Pennsylvania. Gestational Carrier Agreements that make clear the intent of the parties regarding parental responsibility and custody rights, or obligations to any child conceived pursuant to the terms of these Agreements, are clearly enforceable.
heARTbeat is a publication of KingSpry’s Adoption Law and Assisted Reproductive Technology Law Practice Group. It is meant to be informational and does not constitute legal advice.
