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Who's Your Mother? Gestational Surrogacy Contracts Enforceable in Pennsylvania, Superior Court Rules

Tiffany L. Palmer, Esq. on 12/29/2015

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Ms. Palmer is a partner at Jerner & Palmer, P.C.

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Last month, the Pennsylvania Superior Court issued a landmark decision, In Re Baby S., 2015 PA Super 244, clarifying Pennsylvania law and finding that contracts governing gestational surrogacy arrangements are enforceable.

In this case, television personality Sherri Shepherd argued that she was not a parent to Baby S., the child she and her husband Lamar Sally had conceived through assisted reproductive technology with Sally's sperm, an anonymous egg donor, and a gestational carrier, "J.B." Pursuant to the contracts that Shepherd, Sally and J.B. entered into prior to the embryo transfer, Shepherd and Sally agreed to be the legal and intended parents to any child born of the arrangement and agreed to be listed as the parents to the child on the child's birth certificate. When Shepherd and Sally split up while Baby S. was still in utero, Shepherd decided that she no longer wanted to be a parent.

Following the separation, J.B. filed a petition seeking to have the terms of the contract enforced and for Shepherd and Sally to be declared the legal parents of the baby she was carrying and for them to be listed on the birth certificate as the parents. Shepherd filed a response with new matter to J.B.'s petition, in which she claimed the parties' gestational carrier contract was void and unenforceable and against public policy in Pennsylvania. The Court of Common Pleas of Montgomery County ruled that the gestational carrier contract was enforceable and that Shepherd was in breach by denying her parentage to Baby S. and by refusing to sign the Department of Health forms to be listed on his birth certificate as the legal mother.

The unanimous decision on November 23 from the Pennsylvania Superior Court affirmed the decision of the trial court and applied, for the first time in an appellate decision, contract law principles to find that a gestational surrogacy contract is a valid and enforceable contract in Pennsylvania. "Generally, a clear and unambiguous contract provision must be given its plain meaning unless to do so would be contrary to a clearly expressed public policy," the Court noted in citing Eichelman v. Nationwide Ins. Co., 551 Pa. 558, 563, 711A.2d 1006, 1008 (1998).

The Superior Court adopted the reasoning of the trial court and its reliance upon Ferguson v. McKiernan, a 2007 Pennsylvania Supreme Court case which held that an oral contract between a known sperm donor and birth mother who used his sperm to conceive twins through in vitro fertilization was enforceable and not against public policy. Furthermore, the Court relied on J.F. v. D.B., a 2006 Superior Court decision, which held that a gestational carrier who had no genetic connection to the children she carried was not their legal mother and did not have legal standing to seek custodial rights.

"Baby S. would not have been born but for Appellant's actions and express agreement to be the child's legal mother," the Court noted. "Moreover, case law from the past decade reflects a growing acceptance of alternative reproductive arrangements in the Commonwealth. The Ferguson Court expressly recognized the enforceability of a contract that addressed parental rights and obligations in the context of assisted reproductive technology, which in that case involved sperm donation."

Pennsylvania does not have any statutes governing assisted reproductive technology and parentage. However, the Superior Court did not find the lack of legislation on gestational carrier arrangements to imply that such arrangements are against public policy or should be prohibited. Indeed, for 20 years, the Department of Health has accepted court orders declaring the legal parentage for children born to gestational carriers and has a policy in place to issue birth certificates in the names of the intended parents rather than the gestational carrier who gave birth. "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 against Appellant."

The Baby S. decision provides needed clarification to Pennsylvania's assisted reproduction jurisprudence and places Pennsylvania in the majority of states in the country that permit gestational surrogacy arrangements by statute or case law. Only five states in the country expressly prohibit gestational surrogacy, including two states bordering Pennsylvania- New Jersey and New York.

Read the full Baby S. decision here.

The Superior Court may not have the final word as a Petition for Allowance of Appeal to the Pennsylvania Supreme Court was filed by Shepherd on December 22, 2015.

Tiffany L. Palmer is a partner and founding member of Jerner&Palmer, P.C. in Philadelphia whose practice is focused on family formation through assisted reproductive technology and adoption. Tiffany has received national recognition for her work in assisted reproduction law and was counsel to L.S. in the Baby S. case. www.jplaw.com

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