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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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