Written by: David M. Secouler
There have been some BIG developments to Pennsylvania surrogacy law, and PA surrogacy contracts over the past few months – and we here at the Law Office of David M. Secouler are very excited! So excited that I had to write two articles! After developing a quick legal analysis, my wife, Kara, politely informed me that it was too legal! So, to compensate I also boiled down my legal jargon into some quick blog English as well. Here now I present both to you!
After several years of wading in the gray area of the law, the Pennsylvania Superior Court has finally given us a clear answer as to how gestational surrogacy contracts will be treated in the Commonwealth – ENFORCEABLE!
PA Surrogacy Contracts: The Plain English Version
(check out the Legal Analysis below!)
Here’s what happened – The Intended parents happily traveled along their long, but very much desired journey to having a child through surrogacy. Everything moved along nicely until the marriage got rocky and they decided to call it quits. Intended Mother (who has no genetic relation to the baby) said “best of luck, not my kid” – Intended Father and Gestational Carrier said “Oh yes it is you signed a contract!”
Jump ahead and everyone is in court trying to figure out who the legal mother of the child is. Previous court cases have told us it can’t be the carrier – she has no biological relationship to the child – but does it have to be the Intended mother?
Up to this point we had no clear answer in Pennsylvania as to whether surrogacy contracts were enforceable. We use them all the time and their importance cannot be over stated, but we didn’t have a clear “yes” or “no” from the courts.
In the trial court the Intended Mother argued that the surrogacy contract should not be enforced because it violated “public policy” – this subject matter is not controlled by a law in PA and it is so morally and ethically repugnant that this contract is simply illegal and cannot be enforced.
For example: If you contract a “hit” (a contract to have someone killed), and your hitman doesn’t meet the terms of the agreement,the court simply will not enforce that contract!
In this case, the Judge gave Intended Mother the answer she deserved “we can state, without any hesitation, that the contract here at issue must be enforced.” The court decided that the baby would not have been born without the Intended Mother’s actions. She made the decision, she found the carrier, she got the eggs, she signed the surrogacy contract, she was involved every step along the way.
So did the Intended Mother decided “okay, looks like I did create this situation, I should step up now” – of course not! She appealed to the first level of appeals court in PA – THE SUPERIOR COURT.
Here’s where things get fun: Opinions handed down from the Superior Court are often the “case law” that makes up the law that we lawyers use (meaning there have been rulings to support similar actions in the past, but no actual cold, hard law on the books). Courts often interpret written statutes when necessary, apply laws, and sometimes when no law exists they have to get creative.
While in the past the Superior Court has punted on the surrogacy contract issue (that’s for the legislature not us) – this time they went all in. Agreeing with much of the trial court’s reasoning, the Superior Court basically said “assisted reproduction contracts are more and more common, we see them a lot in Pennsylvania, and we give them the stamp of approval.”
What does this mean for us in the everyday world of surrogacy? It means we now know that the courts of Pennsylvania will generally treat surrogacy contracts like any other contract – big news! While there are still no hard and fast laws regulating surrogacy in Pennsylvania (like there are in California), this ruling makes PA an even more secure choice when choosing a state to peruse a surrogacy agreement. So go forth and contract with an easy mind!
PA Surrogacy Contracts: The Legal Analysis
(caution: may cause drowsiness)
In the last major surrogacy case before the Superior Court, the contract issue (namely the validity and enforceability of PA surrogacy contracts) was gently punted away in favor of the procedural standing issue (held: a gestational surrogate lacks standing to challenge or assert custody) – “That task is for the legislator” declared the court. See J.F. v. D.B., 897 A.2d 1261 (Pa. Super. Ct. 2006), appeal denied, 589 Pa. 739 (2006). While the J.F. v. D.B. case did provide us with a clear path as to custody issues related to gestational surrogacy it left us with a burning question – are these contracts valid and enforceable?
Well, on November 23, 2015, we finally have our answer. In Re: Baby S. Appeal of: S.S.has clearly articulated the Superior Court’s opinion that gestational surrogacy contracts are valid, enforceable contracts. In this case, the Intended Parents decided to purse having a child via gestational surrogacy. They signed on with an agency, located a carrier, and obtained donated eggs. The all-important contract was drafted and signed by both parties (IPs and Carrier) and everything moved along smoothly….for a while. Twenty weeks into the pregnancy the IPs attorney (and owner of the agency) began preparations to file for a pre-birth order in Pennsylvania. Unfortunately, the IPs had been experiencing marital difficulties and the intended mother refused to sign any of the required documentation. No pre-birth order was obtained and the baby was born several months later – birth certificate listing only the gestational carrier. The intended father did take full custody of the baby however legal parentage was yet to be fully decided.
Fast forward a year and the case was to be heard in the Court of Common Pleas – Carrier and Father seeking to have the Intended Mother declared the child’s legal mother. The trial court ruled strongly in favor of the Carrier/Intended Father stating “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.”
The Intended Mother appealed the trial court arguing that PA surrogacy contracts are void and unenforceable as against public policy. Relying on long established law, the Superior Court noted that “the standard for deciding a case on strict public policy ground is unquestionably high” and further explained that “it is only when a given policy is so obviously for or against the public health, safety, morals, or welfare, that there is a virtual unanimity of opinion in regard to it, that a court may constitute itself the voice of the community in so declaring [that the contract is against public policy.” Relying on the trial court’s analysis, case law, and the longstanding Department of Health Assisted Conception Birth Registration procedures the Superior Court determined that the ‘virtual unanimity of opinion’ in Pennsylvania is in favor of recognizing the validity of gestational surrogacy contracts.
In examining other cases dealing with reproductive contracts, the court noted the “growing acceptance of alternative reproductive arrangements in the Commonwealth.” Quoting the Ferguson case, the Superior Court further reasoned that “non-sexual clinical options for conception…are increasingly common in the modern reproductive environment.” TheFerguson court, in deciding on the validity of a sperm donation agreement reasoned that “the absence of a legislative mandate coupled to the constantly evolving science of reproductive technology…illustrate the very opposite of unanimity…this undermines any suggestion that the agreement at issue violates a dominate public policy or obvious ethical or moral standards.”
In addition, the court here opined that the Intended Mother’s argument that gestational surrogacy contracts are void as against public policy were “further undercut” by more than twenty years of Pennsylvania courts issuing pre-birth orders pursuant to the DOH procedures – as the trial court put it “That this administrative procedure exists and court in the Commonwealth routinely enter orders that authorize the issuance of birth certificates for children born as a result of alternative reproductive technologies would clearly militate against a finding that surrogacy contracts violate public policy.” Following this line of reasoning the Superior Court concluded that “the legislature has taken no action against surrogacy agreements despite the increase in common use along with a DOH policy to ensure the intended parents acquire the status of legal parents in gestational carrier arrangements. Absent an established public policy to void the gestational carrier contract at issue, the contract remains binding and enforceable…”
When all is said and done the Baby S case has, for now, shed some much needed light on the validity and enforceability of gestational surrogacy contracts in Pennsylvania. While PA has been one of the most surrogacy friendly states for over 20 years (thanks to the DOH procedures), it can now be said to be one of the best. It is of course important to note two important facts that enabled the court to reach the decision in this case: (1) all parties to this contract were represented by able counsel; and (2) the arrangement between intended parents and gestational carrier was spelled out “to the nth degree” in a detailed formal contract. The Baby S. case highlights just how important it is to have a detailed contract in place for your surrogacy journey and we can all rest just a little bit easier knowing that these documents will be enforced as valid contracts in the Commonwealth of Pennsylvania.
 In Re Baby S. Appeal of S.S, 2015 Pa. Super. 244 – https://www.pacourts.us/assets/opinions/Superior/out/J-A28015-15o%20-%201024461805731818.pdf
 Id. at *6 quoting Ferguson v. McKiernan, 596 Pa. 78 (2007).
 Baby S. at *7.
 Baby S. at *6 quoting Ferguson 596 Pa. 78.
 Baby S. at *6.