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Surrogacy Law:  How important is the surrogate contract?

Modern advances in scientific means of assisted reproduction (surrogate) have allowed prospective, wanna-be-parents to have children in new ways that we would not have imagined when we were children ourselves, but has the law kept up with the progress?  In the recent case of In Re Baby S., 2015 PA Super 244, Pennsylvania Superior Court has recently considered whether a surrogate “gestational carrier” contract was enforceable against a prospective mother who changed her mind about raising a child when it became time to put her name on the birth certificate.

The “Intended Mother” and her husband, the “Intended Father” had signed a surrogacy contract through a reproduction-assistance company with a surrogate “Gestational Carrier,” who would carry a child developed from a donated egg and the sperm of Intended Father.  The contract for ovum donation and the gestational carrier contract were clear that, once the carrier was confirmed to be pregnant, the agreement could not be terminated.  The Intended Parents’ names were to be entered on the child’s birth certificate, and the surrogate mother was not to have any parental or custodial rights or obligations.  This provision would typically be used to enforce the Intended Parents’ rights to raise the baby as their own, without interference from the gestational carrier.

The prospective parents of Baby S. were having marital difficulties by the time the surrogate, gestational carrier was due to give birth, so a legal dispute ensued about whether the woman who contracted to carry a baby to term for the Intended Parents could ultimately be held legally and financially responsible as the birth mother.   Intended Mother claimed that it was a violation of public policy to enforce the contract for motherhood to which she had agreed.  The “public policy” argument essentially means that the Courts may not force individuals to carry out an agreement that is contrary to the overwhelming majority of public opinion regarding an issue of “public health, safety, morals or welfare.”

Since actions and agreements are presumed to be legal if the legislature has not written a law stating otherwise, the Courts are unlikely to void a contract as against public policy.  According to the Court’s decision regarding Baby S., “(t)he standard for deciding a case on strict public policy grounds in unquestionably high. . . ,”  and the absence of  a specific statute regarding the validity of surrogacy agreements does not defeat the contract in the case.  Because the agreement unambiguously stated that Intended Parents would be the legal parents and the gestational carrier would have no maternal rights, there was no basis for the Court to allow the Intended Mother to escape responsibility.  Father was awarded physical custody, and since Intended Mother breached the agreement by refusing to have her name on the birth certificate, she was ordered to pay the legal fees of the Gestational Carrier as well as child support to the father raising the child.

Most often, prospective parents who have invested emotionally and financially in developing surrogacy contracts are committed to raising a child for life, so there are more legal cases initiated by surrogate mothers who have changed their minds and seek to change their surrogate role to the status of a custodial parent. For example, in the 2006 Pennsylvania Superior Court case of J.F. v. D.B., J.F. v. D.B., a gestational carrier sought custody of triplets after their birth, but the Court ultimately dismissed her claim and awarded custody to the father, who was a biological parent.  The Court “declined to rule on the validity of the surrogacy contract,” based in part on the carrier’s choice to rely on the argument that the surrogacy itself made her the “legal mother.”  Accordingly, the Court also stated, “we decline to rule on the propriety of surrogacy contracts generally.  That is a task for our legislators.”   The Superior Court ultimately denied the gestational mother’s claim, finding that the surrogate did not have standing, the legal right to seek custody or adoption of a child.  The biological ties are binding, and both “Intended Parents” and potential surrogate gestational carriers, should have a clear and valid surrogate contract and legal advice about their parenting choices before asserting or relinquishing parental rights.

Without legislative action or Court guidance beyond the assurance that certain surrogacy agreements do not violate ‘public policy,’ solid, legal contracts with a gestational carrier and necessary donors are crucial steps in preparing for surrogate parenthood.  If you have questions about contracts, surrogacy, custody or other family law issues, contact the Mazza Law Group, P.C. for consultation and legal advice.

Surrogacy Law:  How important is the surrogate contract? was last modified: August 5th, 2016 by Judy Homan
About Judy Homan

Prior to joining the firm, Attorney Judith L. Homan was practicing in New Hampshire for 21 years. She is a Penn State Graduate and was born and raised in Penns Valley. She has returned to the area to be closer to family. Attorney Homan’s practice areas with the firm will focus on family law and civil litigation.The Mazza Law Group, P.C.'s Google+ Profile