Surrogacy And The Law Of Pennsylvania
Author: Lawrence A. Kalikow
I. OVERVIEW
A. Statutory Law
Pennsylvania presently has no laws 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, in apparent reaction to the James Austin homicide case (discussed below), 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.
It should also be noted that in October 1992, the House of Delegates of the Pennsylvania Bar Association (PBA) approved a proposed Surrogate Parenting Act that, like S.B. 269, would allow the child born of a court approved surrogacy agreement to be deemed the child of the intended parents. Also, the Act makes explicitly clear that payment of compensation to a surrogate mother in connection with such an agreement would not violate Pennsylvania's statutory prohibition against dealing in infant children (18 Pa.C.S.A. 4305) "because the policy considerations behind section 4305 do not come into play in a surrogate parenting arrangement." Although the Act clearly contemplates that surrogate parenting remain a viable family building option, the numerous burdens the Act imposes upon the intended parents, as well as physicians, could render it effectively prohibitory if it ever becomes law. Inasmuch as the approval of the Surrogate Parenting Act by the PBA is merely an expression of the position taken by the organized bar, it lacks the force and effect of duly enacted legislation.
As of the present time, no surrogacy legislation is pending before the Pennsylvania legislature.
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. Nor has any decision of any Pennsylvania appellate court dealt directly with any aspect of surrogacy.
The lack of existing statutory or decisional law addressing surrogacy in Pennsylvania and the varied -- sometimes diametrically opposed -- legislative proposals that have been introduced in the state legislature have led one trial judge to recently observe that "there is no articulated fixed policy on many surrogacy issues in Pennsylvania at this time." Huddleston v. Infertility Center of America, 50 Northampton County Reporter 115, 125 (1996). By virtue of the Huddleston case, however, it is likely that in the very near future surrogacy will be addressed at the appellate level, albeit in a limited context.
The Huddleston case arose out of a traditional surrogacy arrangement between a twenty-six year old single male from Pennsylvania, James Austin, and an Indiana surrogate mother, Phyllis Huddleston. Mr. Austin had availed himself of the services of an Indiana surrogacy center (Infertility Center of America, Inc.) to locate the surrogate mother and to prepare the Surrogate Parenting Agreement. The Agreement between Mr. Austin and Ms. Huddleston was executed in November 1993. In December 1994, a child, Jonathan Austin, was born of the artificial insemination procedures provided for in the Agreement. Pursuant to the Agreement, the biological and intended father (James Austin) thereupon paid compensation to Ms. Huddleston in the amount of $13,000.00. The day following his birth, the infant was relinquished to the care, custody and control of Mr. Austin, who returned to Pennsylvania with the child. On January 17, 1995, Jonathan Austin died of injuries sustained at the hands of his father, who repeatedly battered the child in the month following his birth. In August 1995, James Austin pleaded guilty to third degree murder in connection with the death of his infant son.
In July 1995, Ms. Huddleston commenced a wrongful death and survival action against the surrogacy center. The gravamen of that lawsuit was that the center was negligent in failing to counsel and psychologically evaluate the intended father. In October 1995, the surrogacy center filed preliminary objections challenging the legal sufficiency of the Complaint. By order and opinion (dated April 30, 1996) of the Honorable James C. Hogan, Judge of the Court of Common Pleas of Northampton County, the preliminary objections were sustained, and Ms. Huddleston's action against the surrogacy center was dismissed with prejudice.
Although the Huddleston court assiduously avoided any direct ruling upon the legality and enforceability of surrogate parenting contracts in Pennsylvania, the court relied heavily upon the Surrogate Parenting Agreement entered into between Mr. Austin and Ms. Huddleston in disposing of the latter's claims. Hence, the court observed that "..the written agreement between surrogate mother and father is a point of reference to determine the relationship of center, surrogate mother and father to each other and the child." Furthermore, in ruling that Ms. Huddleston lacked the required familial relationship to the decedent (Jonathan Austin) to recover under the Wrongful Death Act, the court found dispositive "the explicit intention expressed by the surrogate mother in her pre-conception written agreement with father that she would not nurture, not care for, and not share in the child's life." Similarly, the court ruled that Ms. Huddleston's expressed intent to relinquish all parental rights and to forego any mother-child relationship precluded a finding that the surrogacy center owed a duty to protect Ms. Huddleston by psychologically screening the biological father and providing him with parental training.
Ms. Huddleston has appealed from the ruling of the trial court, and the case is now pending before the Superior Court of Pennsylvania.
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. In the absence of a successful court challenge, that presumption would likely apply irrespective of whether or not she is the genetic mother. As is true of most states, the law of Pennsylvania continues to lag behind advances in medical technology and does not contemplate that a woman could give birth to a genetically unrelated child.
Notwithstanding the foregoing, with respect to gestational surrogacy, it may be possible to have the original birth certificate issued in the names of the genetic and intended parents, thereby establishing legal parentage without having to institute any formal adoption proceedings. In September 1995, Vital Records, of the Pennsylvania Department of Heath, 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." It should be observed that this new procedure is not prescribed by any statute or by 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.
III. PATERNITY/BIRTH CERTIFICATE
If the surrogate mother is not married, the biological and intended father may -- and, in fact, should -- be named as the father on the originally issued birth certificate. 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. 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, in the absence of enacted legislation explicitly dealing with legal parentage in the context of surrogacy, the Adoption Act remains the only legal mechanism for terminating and assigning parental rights.
Accordingly, in the event that the birth certificate is not issued in the names of the intended parents, proceedings must be instituted under the Adoption Act in order to establish legal parentage in the intended parents. Ordinarily, this will require only a stepparent adoption, since at least one of the intended parents will be a biological (i.e., genetic) parent of the child. 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 the Huddleston court observed, supra, at 134 "...we have found no law requiring that a biological parent must undergo psychological testing or counseling as a condition of parenthood."
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. Typically, this would be accomplished through the surrogate mother's executing 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 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 surrogate parenting 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 certaindesignated 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.
V. 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 creates uncertainty and attendant risks, at the present time Pennsylvania may be viewed as a state where carefully structured surrogate parenting arrangements can be successful.
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.
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