Due to precautions related to COVID-19, we have expanded our options for remote consultations.Please contact our office to discuss whether a full phone consultation or video conference is appropriate for your situation.
What You Need to Know about Surrogacy in Pennsylvania
If you are planning to use surrogacy to bring a child into your family, it is crucial that you be sure to understand the laws.
For families who are unable to have children without assistance, surrogacy is a possibility here in Pennsylvania. While Pennsylvania does not have a specific law covering surrogacy, the courts have upheld surrogate contracts between the parents and the carrier.
You Must Have a Surrogacy Contract
Due to the lack of a surrogacy statute in Pennsylvania, it is absolutely critical that the parents have a contract with the fetus’ carrier. Failure to have a properly written surrogacy contract can have devastating results. The carrier could seek to claim the baby once it is born, and if there is no contract, they could conceivably prevent the parents from taking custody. Especially if the carrier is the biological mother. As a result, it is absolutely necessary that the parents retain surrogacy attorneys to create the contract, and advise them on all of the necessary steps to protect both themselves and the surrogate.
Types of Surrogacy
There are two types of surrogacy:
Gestational – the carrier, or surrogate, has no biological relationship to the implanted fetus. Gestational surrogacy is the most popular form today. The reason this form is most popular is that it minimizes potential legal issues that can occur in a traditional surrogacy, when the biological mother seeks to assert her parental rights. It also protects the carrier from child support requirements. Most critically, the non-biological carrier does not have the right to seek custody of the child.
Traditional – the surrogate provides the egg and so is the biological mother of the fetus. As noted, the biggest risk related to having the carrier provide the egg, is that she has standing to seek custody of the child. In addition, the biological mother must terminate her parental rights via adoption. Fortunately, Pennsylvania courts have upheld properly drafted contracts in such cases. However, serious complications can occur when the mother is biologically related to the baby.
Issues Related to the Sperm Donor
If the intended father is also the sperm donor, he will automatically have legal rights to the child. If the parents go through a sperm bank, they have specific protections, as does the biological father. However, if the biological father is known, and the appropriate steps are not taken, that father may have custodial rights to the child, as well as financial obligations. As such, it is critical that all proper steps be followed if a the intended father is not also the sperm donor.
Is Adoption Necessary?
The determination of whether adoption is necessary is an important question to ask of your surrogacy lawyer before you begin the process.
If at least one of the intended parents is biologically related to the child, adoption may be unncessary at all. Especially if those parents are married. Pennsylvania allows for an assisted conception birth registration, which in the case of a gestational surrogacy, helps avoid the need for adoption. This process involves obtaining a pre-birth court order. Failure to obtain the pre-birth order results in the birth mother being the presumed mother of the baby. As a result, the initial birth certificate will name the surrogate as the mother of the child.
If the carrier is also the biological mother adoption will be necessary. In addition, the biological mother will have to terminate her parental rights upon the birth of the baby.
Considering Surrogacy to Complete Your Family?
As you can see, the lack of a statute in Pennsylvania, complicates the legal issues that can arise during a surrogate pregnancy. It is critical to make certain that you are aware of the myriad legal problems that can occur, and that you retain counsel that is capable of helping you minimize all of those risks. If you are considering a surrogacy, reach out to our central Pennsylvania surrogacy attorneys, Alexis M. Miloszewski and Jessica E. Smith for assistance.