Surrogacy in Pennsylvania

Surrogacy is the biological process whereby one woman carries to term a pregnancy for another woman (or couple) who cannot, for medical or other reasons, conceive and birth a child on their own. Pennsylvania is neither the best nor the worst state in the union for surrogacy, though certain legal hurdles need to be addressed for surrogates and intended parents.

There are two types of surrogacy: Traditional Surrogacy whereby the surrogate carrying the child is genetically related to the child (i.e., her own egg is used in the fertilization process), or Gestational Surrogacy in which the surrogate is carrying a child to which she is not genetically related.

Pennsylvania has precedents that make it clear that the state allows for families created through surrogate births. In 2006,  J.F. v. D.B. 897 A.2d 1261 (2006), the Pennsylvania Supreme Court established that surrogacy contracts were legally enforceable and a woman who signed such a contract prior to conception could not later decide to keep the children born through surrogacy.

Pennsylvania’s Supreme Court went a step further with In re: Baby S [2015 Pa. Super. 244 (2015)], in which the court specifically upheld a surrogacy agreement, in spite of the divorce of the intended parents. Both of these cases involved Gestational Surrogacy, whereby the surrogate had no genetic relationship to the child she carried.

With Traditional Surrogacy, intended parents in Pennsylvania cannot get an advanced Order declaring their parentage prior to birth. Instead, the process falls under state adoption laws, meaning the Surrogate must relinquish the child and the parents must go through a formal adoption process afterward. In Pennsylvania, Traditional Surrogacy arrangements cannot include a fee-for-service arrangement with the Surrogate, although medical, legal and other expenses can be paid by the intended parents.

For this reason, Gestational Surrogacy is an easier process in Pennsylvania, particularly since payments for such services are legal. Alternative reproductive arrangements have been increasingly addressed, if not by state law, then by departmental procedure. For instance, the Department of Health has for decades accepted Assisted Conception Birth Registration, allowing for the intended parents, if both are related genetically to the child, to be listed as parents on the Birth Certificate. This saves potential parents much time and money, as they then do not need to go through a formal adoption procedure.

Surrogacy in Pennsylvania can help you begin your family, though, as I have cautioned above, the lack of state surrogacy law makes it imperative that you hire an attorney with experience in reproductive law. I offer a free first consult – come discuss with me your hopes for surrogacy, either as parents or as a surrogate. Call my office at 215-345-5259 for an appointment.

-Elissa C. Goldberg, Esquire