What Makes Pennsylvania a Great State for Surrogacy?

Pennsylvania courts have had a few opportunities to review gestational surrogacy , both in a contractual sense, as well as in challenges to custody of children born via gestational carriers.   In 2006, the Superior Court (our mid-tier 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 refused to declare 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.   

More recently,  in 2015 the  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 courts 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.” 

In 2003, the Pennsylvania Department of Health developed the “Assisted Conception Birth Registration” procedures setting forth a uniform, state wide, 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  first requires that a “Certificate of Live Birth” is completed at the time of birth by the attending midwife or obstetrician.  The attending 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 “Prebirth 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. 

Prebirth Order 

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 must be obtained before the birth of the child and must order  any copies of the birth certificate  reflect the names of the intended parents. I 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  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, prebirth orders have been issued in more than 30 counties in Pennsylvania.