by Lawrence A. Kalikow, Esquire
In general, despite the lack of statutory law addressing surrogate parenting, Pennsylvania may be viewed as a very good state for carefully structured surrogacy arrangements, especially gestational surrogacy.
Pennsylvania presently has no statutory law in effect addressing surrogacy. Moreover, although Pennsylvania has enacted legislation specifically relating to dog breeding and seed quality (in the botanical sense), as well as an artificial propagation law that applies to fish, no laws have yet been enacted directly addressing any form of third-party human reproduction.
In the history of the jurisprudence of Pennsylvania, there has been only one reported case involving a disputed claim of custodial or parental rights arising out of a surrogacy arrangement. That case, J.F. v. D.B., was decided by the Superior Court of Pennsylvania, in April 2006, against a gestational carrier who sought custody of triplets to whom she had given birth pursuant to a surrogate parenting contract. The facts in the J.F. case were unusual in a number of ways. The intended parents were not married to each other, and a known egg donor provided the eggs used in achieving the children’s conception. Also, the arrangement was structured by an out-of-state agency apparently unfamiliar with Pennsylvania’s “Assisted Conception Birth Registrations” procedure. After the triplets were born, the gestational carrier surreptitiously arranged with the hospital for the discharge of the children directly to her.
In resolving the ensuing custody litigation in favor of the biological and intended father, the Superior Court determined that, under the facts of the case, the gestational carrier lacked legal standing to even assert a claim for custody. Significantly, the court held that the gestational carrier could not attain such standing by obtaining physical custody of the children without the consent of the biological father. Moreover, the court refused to find that the gestational carrier was the legal mother of the children based merely on her gestating and giving birth to them. While the court, in J.F., declined to rule expressly on the validity of surrogacy contracts, deeming that a matter for the legislature, the J.F. decision is an important development in Pennsylvania law and a very favorable one for intended parents pursuing gestational surrogacy. In October 2006, the Supreme Court of Pennsylvania denied the gestational carrier’s petition for allowance of appeal from the Superior Court’s ruling.
With respect to gestational surrogacy (that is, where the carrier is not the genetic mother of the child), it will likely be possible to establish the legal parentage of the genetic and intended parents without having to institute any adoption proceedings. In September 1995, Vital Records of the Pennsylvania Department of Health (DOH) formulated a procedure allowing for the originally issued birth certificate to identify the intended parents as the child’s parents. That procedure requires 1) the completion and submission of a “Supplemental Report of Assisted Conception” (a Vital Records form); and 2) the issuance of a court order, by a judge of competent jurisdiction, directing that any certified copies of the birth record of the child(ren) shall reflect the parentage of the intended parents. Procedurally, in order to obtain the required court order, a detailed petition must be filed with the court (usually the Orphans' Court division in the Pennsylvania county where the birth occurs).
It should be observed that this procedure is not prescribed by any statute or any duly enacted regulation. Accordingly, it is not binding upon the courts, and a particular judge in a particular jurisdiction may refuse to issue the required court order. Nonetheless, to date, courts in more than thirty Pennsylvania counties have issued such orders. In the vast majority of those jurisdictions, it should be possible to obtain the required court order as a pre-birth order, that is, before the child(ren)’s birth. Although most of the parentage orders issued pursuant to the DOH “Assisted, Conception Birth Registrations” procedure has involved children who are the genetic offspring of both intended parents, courts in more than twenty (20) Pennsylvania counties have issued such orders where donor eggs (from neither the intended mother nor the carrier) were used in achieving conception. Hence, it may be possible for an intended mother, who is not the genetic mother of the child, to be deemed a legal parent without the need for adoption proceedings. Procedure: Nonetheless, to date, courts in more than thirty Pennsylvania counties have issued such orders, and recent Pennsylvania appellate case law has recognized and been supportive of the procedure.
With respect to children born of traditional (AI) surrogacy arrangements and with respect to children born of gestational surrogacy arrangements where the DOH “Assisted Conception Birth Registration” procedure cannot be successfully invoked, proceedings must be instituted under the Adoption Act in order to establish the intended parents’ legal parentage. This should require only a stepparent adoption since at least one of the intended parents will be a biological (that is, genetic) parent of the child. The venue for such proceedings may be based upon the county of residence of either the adopting parent or the surrogate mother. The legal procedure for concluding a stepparent adoption is simpler than that required in connection with an adoption involving unrelated parties. While a petition for adoption must be filed with the court, no report of intention to adopt or report of intermediary needs to be filed. Nor is a preplacement investigation or home study statutorily required. Depending upon the particular court system involved, either one or two court hearings will be required in order to conclude the adoption. Typically, however, the adopting parent(s) and the child will only have to appear at a single hearing to finalize the adoption.
Clearly, the “needs and welfare,” as well as the “best interests,” of the child will virtually always dictate that a stepparent adoption arising out of a surrogacy birth be approved. The decision to grant an adoption, however, lies within the sound discretion of the court. While it is possible that the payment of compensation or of certain other surrogacy-related expenses may be viewed by some judges as being statutorily impermissible, it is highly dubious that any payment limitations of the Adoption Act were intended to apply to pre-conception surrogate parenting arrangements.
After an adoption decree is granted, Vital Records of the Pennsylvania Department of Health will issue a new birth certificate for the child. That birth certificate will supersede the original birth certificate and will identify both intended parents as the child(ren)’s parents, making no reference to either the surrogacy or the adoption. Under Pennsylvania’s Adoption Act, the records in the court file relating to the adoption are treated as confidential and are protected from public disclosure.
Pennsylvania’s Adoption Act provides that “Any individual may become an adopting parent.” Furthermore, in August 2002, the Supreme Court of Pennsylvania expressly ruled that same-sex partner (or “second parent”) adoptions are not precluded under the Adoption Act. Rather, based upon an evidentiary “showing of the cause” (for dispensing with otherwise applicable statutory requirements), a same-sex partner adoption may be approved.
Accordingly, the partner who is not genetically related to a child born of a surrogacy arrangement may become a legal parent of the child, along with the partner who is a genetic parent of the child, via adoption proceedings. Also, with respect to gestational surrogacy, a growing number of Pennsylvania courts have issued parentage decrees under the “Assisted Conception Birth Registrations” procedure (discussed above), either identifying the partner who is a genetic parent as the child’s sole legal parent or identifying both same-sex intended parents as the child’s legal parents.
Except with respect to the Pennsylvania Department of Health's “Assisted Conception Birth Registrations” procedure (discussed above), which may be used in connection with gestational surrogacy, the woman who gestates and gives birth to the child is, in effect, conclusively presumed to be the legal mother of the child. Absent a court order to the contrary, and the originally issued birth certificate will name the woman who gives birth as the mother of the child.
In accordance with the court order issued pursuant to the “Assisted Conception Birth Registrations” procedure, the intended father will be deemed the child’s father, and the originally issued birth certificate will so identify him. In the absence of such an order, the intended father may nonetheless be identified as the child’s father on the original birth certificate, provided that the appropriate documents are executed.
Lawrence A. Kalikow, Attorney at Law
Warminster Corporate Center
65 W. Street Road, Suite A203
Warminster, PA 18974
Tel: (215) 682-9100
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