Many situations can cause a person to consider the possibility of a surrogate to carry a fetus: sterility, same-sex relationships, or fear of passing on bloodborne conditions, for example. In Pennsylvania, there is no statutory law governing surrogacy. There are also substantial public policies at play, which may not be intuitive, that may prevent certain types of surrogacy agreements from being enforceable. Considering surrogacy can be a daunting process that requires careful consideration and finding an option that is right for your situation. This piece will discuss some different surrogacy arrangements and their implications.
In a gestational surrogacy, the surrogate carries the fertilized egg of another person. This can be a situation where the intended mother herself has used her egg, or where the intended mother has secured an egg from a donor (known or anonymous). Because the egg did not belong to the gestational surrogate, implantation of fertilized egg(s) will need to happen via invitro fertilization. In gestational surrogacies, the surrogate is often compensated. Upon birth, the gestational surrogate is not the child's legal mother and, therefore, has no legal claim over the child. The child can be turned over to the intended parent(s), but the Department of Health will require an order to list the intended parent(s) on the birth certificate. Some counties in Pennsylvania will provide a pre-birth order, while other counties will not do so until post-birth.
In a traditional surrogacy, the surrogate herself provides the egg and it may be fertilized with sperm from a known or anonymous donor. Because the surrogate is biologically related to the expected child, she will be the legal mother of the child. This also means that she cannot be compensated for her promise to terminate her parental rights. Her parental rights must be terminated after the child is born by adoption proceedings.
In any surrogacy matter, the situation of the parties and potential surrogate can greatly affect the obligations of all involved with respect to the child that is created. Complications can arise where a surrogate changes her mind and decides to keep the child. In a traditional surrogacy, she may have the ability to do so since she is the legal mother of the child. Additionally, in cases where the sperm donor is known (as opposed to anonymous), unless certain safeguards are taken, he may be obligated to child support for a child to whom he never intended having any obligations.
By: John M. Schaffranek, Esquire