Surrogacy Contracts are Alive and Well in Pennsylvania

by Obermayer Rebmann Maxwell & Hippel LLP
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In today’s modern world of technology, how babies are created is greatly different than in the yesterdays of our parents’ world.  Today, there are sperm donors, egg donors, gestational carriers, in vitro fertilization, to name just a few.  While not as common as traditional reproductive methods, technology is probably responsible for a significant percentage of the children born in today’s world.

Unfortunately, the legislatures throughout the country, and especially in Pennsylvania, have not caught up with technology and have not provided a clear statutory approach to the overall issue of the surrogacy process.  Therefore, as is often the case when the legislature does not provide an answer, the courts are forced to create public policy and to make decisions in that vacuum.  That is exactly what occurred in a recent appellate case titled “In Re: Baby S.” where the Superior Court of Pennsylvania agreed with the trial court that a contract between a husband and wife with a gestational carrier would be declared binding and enforceable.  The actual case, In Re: Baby S., found that 215 Pa.Super. 244, just recently decided on November 23, 2015, clearly demonstrates that there is a growing acceptance of alternative reproductive arrangements within the Commonwealth of Pennsylvania, that a contract entered knowingly and without fraud or duress will be binding and enforceable.

This decision is consistent with an earlier Supreme Court of Pennsylvania case, McFerguson v. McKernan, where the court found there was a binding and enforceable agreement between a mother and a sperm donor, where the sperm donor agreed to surrender all rights to the children arising from his biological paternity in return for his release from any attendant support obligations.  Therefore, the sperm donor could not at a later point be held liable or responsible for any support of the child/children.  Likewise, the court in the most recent case determined that the husband and wife, even if going through their own divorce, had made a binding and enforceable contract with the gestational carrier, that they would be the parents of this child and they could not walk away from their duties and obligations to have the child become their own based upon intervening circumstances.

Both the trial court’s opinion and the appellate opinion are excellently written and provide not only practitioners, but also the citizens of the Commonwealth, with a clear direction that contracts between parties will be upheld which will hopefully give some stability and some predictability to the entire assisted reproductive technology field, so that parties can make decisions knowing that they will be upheld in the future.  This is a great step forward for all those would-be parents and those who may be helpful in the matter.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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