Gestational surrogacy agreements are not void as against public policy in Pennsylvania and can be used to create parentage of a child, the Pennsylvania Superior Court held in In Re: Baby S, __ A.3d __ (No. 1259 EDA 2015, filed Nov. 23, 2015). This case is being heralded as a landmark decision in alternative reproduction law in Pennsylvania.
S.S. and her husband, L.S., decided to use a gestational carrier to have a child. They chose a surrogate in Pennsylvania because S.S. could be named the mother on the birth certificate without adopting the child. The couple entered into a surrogacy contract with J.B. to carry the child, which was conceived using L.S.’s sperm and an ovum from an anonymous donor. The contract unambiguously stated that S.S. and L.S. were the intended legal parents of Baby S, and the agreement could not be terminated after J.B. became pregnant. Nevertheless, after J.B’s pregnancy was confirmed, S.S., citing marital difficulties, refused to sign the final paperwork. J.B. petitioned the orphans’ court to declare S.S. and L.S. the legal parents of Baby S. In her response with new matter, S.S. claimed the gestational carrier contract was unenforceable. Following a hearing, the orphans’ court held that the contract was valid and enforceable and declared S.S. and L.S. the legal parents of Baby S.
On appeal, the Superior Court affirmed, holding that surrogacy contracts are valid and enforceable under Pennsylvania law. Writing for the unanimous panel, President Judge Gantman rejected S.S.’s argument that surrogacy contracts are contrary to public policy. Although S.S. was correct that the General Assembly has declined to recognize the validity of such contracts, the Court held that the absence of a legislative mandate one way or the other “undermines any suggestion that the agreement at issue violates a dominant public policy or obvious ethical or moral standards.” The Court also cited case law from the past decade reflecting a growing acceptance of alternative reproductive arrangements in the Commonwealth, as well as long-established Department of Health procedures for placing the intended parents’ names on the birth certificate of a child born to a gestational carrier. Absent an established public policy to void the surrogacy contract, the Court concluded the contract was binding and enforceable against S.S.