Gestational Surrogacy is permitted because no statute or published case law prohibits it. In J.F.v.D.B.,897 A.2d1261 (2006), the Pennsylvania Superior Court struck down a trial court’s holdings that a surrogacy contract was contrary to public policy and that a Gestational Carrier was the “legal mother.” That decision opened the door for Gestational Surrogacy to grow in Pennsylvania.
In practice, the application of surrogacy law varies greatly by county, and sometimes by judge, particularly when donors are used.
A recent court decision in Whitewood v. Wolf, No. 1:13-cv-1861 (2014), suggests that married same-sex couples should now be treated equally to married heterosexual couples. This case has not yet been tested with precedents in all counties yet.
Do courts grant pre-birth parentage orders? Yes, but results vary greatly by county and facts.
Can both Intended Parents be declared the legal parents in a pre-birth order if at least one parent is genetically related to the child?
Can both Intended Parents be declared the legal parents in a pre-birth order if no parent is genetically related to the child?
Single parent: Same as above.
What are the bases for venue? County of the Gestational Carrier’s residence, county of the Intended Parents’ residence, or county of the child’s birthplace.
Do results vary by venue? Yes, results vary greatly depending on the county and the judge.
If yes, are motions to waive venue accepted? It varies by county.
Is a hearing required to obtain a pre-birth order? Not in most counties, but some counties require hearings, while other counties leave it to the discretion of each judge.
Is a pre-birth order possible in Pennsylvania based on a Gestational Carrier’s plan to deliver in Pennsylvania, if no party lives in Pennsylvania? Yes, but it is at the discretion of the judge.
Will Pennsylvania Vital Records honor a pre-birth order from another state? Yes
What is the typical time frame to obtain a birth certificate after delivery? 3-10 days with a pre-birth order, if expedited, but 2-6 weeks otherwise.
How are same-sex parents named on the final birth certificate? Mother/Parent and Father/Parent
Can an international same-sex male couple obtain an initial birth certificate naming the biological father and Gestational Carrier? Yes
Can they subsequently obtain a birth certificate naming only the biological father or both fathers, with no mention of the Gestational Carrier? Yes
Can the non-biological parent in a same-sex couple obtain a second parent adoption based solely on the fact that the child was born in Pennsylvania (i.e., neither of the Intended Parents lives in Pennsylvania)? No, not automatically. It is at the court’s discretion.
If no, will Pennsylvania Vital Records honor a second parent adoption order from another state and add the second parent to the birth certificate? Yes
Note: This situation typically arises if the child is born outside of the state. The parents then return to Pennsylvania to obtain a second parent adoption or stepparent adoption in Pennsylvania
Will courts in Pennsylvania grant second parent adoptions or stepparent adoptions to heterosexual couples living in Pennsylvania? No, not automatically. The court must grant leave.
Will courts in Pennsylvania grant second parent adoptions or stepparent adoptions to same-sex couples who live in Pennsylvania? Yes
Does the couple need to be married? No, marriage is not a requirement for adoption.
Is there a statute or published case law that addresses the rights of a donor over the resulting eggs, sperm, embryo or child? Yes, there is a Pennsylvania Supreme Court Case for sperm donors: Ferguson v. McKiernan, 940A.2d1236 (Pa.2007).
If the statute only refers to sperm donors, is there a case law interpreting this statute to provide the same protection in the egg donor context? No
Traditional Surrogacy is permitted in Pennsylvania because no statute or published case law prohibits it.However, a pre-birth order is not possible because the Traditional Surrogate cannot terminate her parental rights until 72 hours after the child’s birth. Traditional Surrogates also cannot be compensated.
State law information provided by the following attorneys practicing Reproductive Law in this state:
Tiffany L. Palmer, Esq.
Stuart S. Sacks
Harrisburg, Carlisle, and Allentown, PA
Other attorneys practicing Reproductive Law in this state:
Dorota Gasienica-Kozak, Esq.
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