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SURROGACY AND THE LAW OF
PENNSYLVANIA
Author: Lawrence A. Kalikow, Esquire
I. OVERVIEW
A. Statutory Law
Pennsylvania presently has no laws in effect that directly address surrogate
parenting. Moreover, although Pennsylvania has laws specifically relating to dog
breeding and seed quality (in the botanical sense), as well as an artificial
propagation law that applies to fish, no legislation has been enacted directly
addressing any form of human third party reproduction, including artificial
insemination. In the last decade, a number of surrogacy bills have been
introduced in the Pennsylvania legislature. None have made it out of committee,
much less become law. In 1987, in the wake of New Jersey's Baby M case, two
vastly different bills were introduced: one (H.B. 776, 170 1st Sess. 1987) would
have amended the domestic relations law to expressly provide for surrogate
parenting and for the enforcement of judicially approved surrogate parenting
agreements; the other (H.B. 570, 170 1st Sess. 1987) would have amended the
Crimes Code to expressly prohibit surrogate parenting. In January 1991, a very
thoughtful bill (S.B. 269 of 1991), sensitive to the plight of infertile couples
and calculated to preserve surrogacy as a family building option, was introduced
in the state Senate. Significantly, that bill was premised upon the reasoning
that "an individual's decision regarding whether or not to bear or beget a child
falls within the constitutionally protected right of privacy, and therefore, the
Commonwealth may not prohibit the practice of surrogate parenting or enact
regulations that would have the effect of prohibiting the practice."
Additionally, S.B. 269 provided for the payment of "just and reasonable
compensation for the surrogate mother" and further provided that upon court
approval of the surrogate parenting agreement "...the child shall be deemed at
birth the legitimate, natural child of the intended parents...." S.B. 269 died
in the Senate Judiciary Committee in November 1992. In February 1995, a bill (H.B.
668 of 1995) that sought to render surrogate parenting agreements unenforceable
was introduced in the House of Representatives. That bill died in the House
Judiciary Committee in November 1996. In February 1997, yet another bill (H.B.
527 of 1997) was introduced in the Pennsylvania legislature. Although facially
supportive of surrogate parenting (e.g., the bill recognized that surrogate
parenting is constitutionally protected and would have expressly allowed for the
payment of compensation to the surrogate mother), the bill reflected a profound
lack of understanding of surrogacy and would have imposed numerous restrictions
and burdensome requirements (including a home study for all parties and multiple
court appearances). Indeed, the bill irrationally would have made it
procedurally more difficult to terminate the parental rights of the surrogate
mother and her husband and assign parental rights to the intended parents than
in a conventional adoption where neither adopting parent is biologically related
to the child. Meeting the same fate as other Pennsylvania surrogate parenting
legislation, H.B. 527 of 1997 died in the House Judiciary Committee in November
1998.
B. Case Law
In the history of the jurisprudence of Pennsylvania, there has not been a single
reported appellate opinion involving a disputed custody claim arising out of a
surrogate parenting arrangement or directly addressing the validity or
enforceability of a surrogate parenting agreement.
II. MATERNITY/BIRTH CERTIFICATE
The woman who gestates and gives birth to the child is, in effect, conclusively
presumed to be the legal mother of the child. Except with respect to the
Pennsylvania Department of Health's assisted conception birth registrations
procedure (discussed below) which may be used in connection with gestational
surrogacy, the originally issued birth certificate will name the woman who gives
birth as the mother of the child.
III. PATERNITY/BIRTH CERTIFICATE
If the surrogate mother is not married, the biological and intended father may
be named as the father on the originally issued birth certificate. The statutory
conditions precedent for doing so are found in Chapter 51 of Title 23 (Domestic
Relations). If the surrogate mother is married, Pennsylvania law presumes that
her husband is the natural father of the child. That presumption, however, is
rebuttable rather than conclusive. Accordingly, even where the surrogate mother
is married, it is possible for the originally issued birth certificate to
identify the biological and intended father as the father. See 28 Pa.Code § 1.5.
and form H.R. 105.004 ("Registration as other than the child of the mother's
husband").
IV. D.O.H. ASSISTED CONCEPTION BIRTH REGISTRATIONS.
With respect to gestational surrogacy (i.e., where the carrier is not the
genetic mother of the child), it will likely be possible to have the original
birth certificate issued in the names of the genetic and intended parents,
thereby establishing their legal parentage without having to institute any
formal adoption proceedings. In September 1995, Vital Records, of the
Pennsylvania Department of Heath (D.O.H.), formulated a new policy and procedure
allowing for the issuance of the birth certificate directly in the names of the
intended parents. That procedure requires, inter alia: 1) the completion and
submission of a Supplemental Report of Assisted Conception; and, 2) the issuance
of a court order, by a judge of competent jurisdiction, stating that "any
certified copies of the birth record of [the] child shall reflect the names 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 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, judges in at least fifteen Pennsylvania counties have
issued such orders.
V. LEGAL PARENTAGE/ADOPTION PROCEEDINGS
While Pennsylvania has a statutory scheme for the judicial termination of
parental rights and the adoption of a child ("The Adoption Act"; 23 Pa.C.S.A. §
2301, et seq.), there is nothing to indicate that the drafters of that
legislation contemplated its application to surrogate parenting. Indeed, the
very fact that a number of surrogacy bills have been introduced in the state
legislature in the last decade (see discussion, above) -- all addressing
parental rights -- suggests the contrary. Clearly, the adoption laws in
Pennsylvania, as in most states, are ill-suited to surrogate parenting
arrangements. See "Surrogate Parenthood and Adoption Statutes: Can a Square Peg
Fit Into a Round Hole?" 22 Family L.Q. 199 (1988). Nonetheless, aside from the
assisted conception birth registrations procedure addressed above, the Adoption
Act remains the only legal mechanism for terminating and assigning parental
rights.
Accordingly, with respect to children born of gestational surrogacy arrangements
where the D.O.H. procedure cannot be successfully invoked and with respect to
children born of traditional (A.I.) surrogacy arrangements, proceedings must be
instituted under the Adoption Act in order to establish legal parentage in the
intended parents. This should require only a stepparent adoption, since at least
one of the intended parents will be a biological (i.e., genetic) parent of the
child. 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 (23 Pa.C.S.A. § 2701), no report of intention to adopt
or report of intermediary need be filed. Nor is a preplacement investigation or
home study required.
As is true with other adoptions, however, it is necessary to terminate the
parental rights of the surrogate mother prior to the court's acting upon the
adoption petition and granting the adoption decree. Ordinarily, this would be
accomplished through the execution of a written consent to adoption followed by
a hearing at which that consent is confirmed. 23 Pa.C.S.A. §§ 2711, 2504. If the
surrogate mother was married at any time within one year prior to the child's
birth, her husband should also execute a similar consent. Consent from the
surrogate mother's husband will not be required, however, if he has received
notice of the hearing and the court is satisfied, based upon the evidence
presented, that he is not the natural father of the child. 23 Pa.C.S.A. §
2711(b). Such proof may consist of testimony from the natural mother and may
include admissible results of scientific tests (such as DNA parentage testing)
to determine paternity. The approval of even a stepparent adoption is not
automatic. The decision to grant or deny the adoption is within the sound
discretion of the court. 23 Pa.C.S.A. § 2902. While the "needs and welfare"
(i.e., best interests) of the child will virtually always dictate that a
stepparent adoption arising out of a surrogacy birth be approved, some judges
may, nonetheless, be reluctant to approve such an adoption, especially where
compensation has been paid to the natural mother in connection with the
surrogacy arrangement. Such a harsh result is clearly not mandated by existing
Pennsylvania law. Although the Adoption Act and appellate case law narrowly
limit payments that can be made by adoptive parents to third parties (including
the natural parents) -- allowing only for the payment of certain designated
medical, hospital and foster care expenses [23 Pa.C.S.A. § 2533(d); In re Baby
Girl D., 512 Pa. 449, 517 A. 2d 925 (1986)] -- it is highly dubious that that
limitation was intended to apply to pre-conception surrogate parenting
agreements.
VI. CONCLUSION
Pennsylvania, unlike some of its neighbor states, has not formally expressed
through either its courts or its legislature any overt hostility toward
surrogate parenting. While the lack of law directly addressing surrogacy
necessarily results in some uncertainty, Pennsylvania may be viewed as a state
where carefully structured surrogate parenting arrangements can be -- and have
been -- highly successful. Indeed, because of the D.O.H. assisted conception
birth registrations procedure (allowing for the initially issued birth
certificate to reflect the parentage of the intended parents), Pennsylvania is
presently an excellent state for pursuing gestational surrogacy.
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Written by: LAWRENCE A. KALIKOW
April 1999
Law Offices of Lawrence A. Kalikow
515 Stump Road, Suite 210
North Wales, PA 19454
Phone: (215) 393-0700
Fax: (215) 393-7001
E-mail:
LAKalikow@aol.com
NOTE: THE OBSERVATIONS ABOVE ARE RESTRICTED SOLELY TO THE STATE OF PENNSYLVANIA
AS OF THE DATE WRITTEN. THE LISTING IS BY NO MEANS EXHAUSTIVE, NOR TAILORED TO
THE PARTICULAR FACTS OF ANY GIVEN SITUATION. ANY REVIEWER OR POTENTIAL USER OF
THIS INFORMATION IS ACTIVELY ENCOURAGED TO SEEK COMPETENT LEGAL COUNSEL WHO IS
LICENSED TO PRACTICE LAW IN THE REVIEWER'S STATE OF RESIDENCE. NO PERSON IS
AUTHORIZED TO RELY UPON THE MATTER OR OPINION SET FORTH IN THIS ARTICLE. THE
AUTHOR IS NOT QUALIFIED TO COMMENT ON THE LAW OF ANY STATE OTHER THAN
PENNSYLVANIA. BY MAKING THIS INFORMATION AVAILABLE, THE AUTHOR IS NOT
ESTABLISHING ANY LAWYER/CLIENT RELATIONSHIP WITH THE REVIEWER.
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