You should be aware that there are traditional surrogates and there are gestational surrogates. A traditional surrogate is one who will be artificially inseminated and therefore will be genetically related to any child who is born from the surrogacy. A gestational surrogate however will have embryos that are created through in vitro fertilization implanted in the uterus of the surrogate, and therefore will not be related to the child. This distinction, whether or not the child is related to the surrogate, is one that courts throughout the United States have focused on. Including the courts in Pennsylvania. For example, in Pennsylvania a gestational surrogate does not have standing (i.e. does not have the legal right) to pursue custody of a child that they birthed but to whom they are not genetically related.
The trend in case law throughout the US has been to make gestational surrogacy contracts enforceable but not traditional surrogacy contracts. Pennsylvania is known to be a surrogacy-friendly state. In 2015 the state Suprior Court, in the case ‘Re Baby S’ ruled that those agreements entered into with gestational surrogates were in fact enforceable (legally allowed).
The law in this area is still changing in Pennsylvania. It’s strongly recommended that you enter into a surrogacy contract with your would-be surrogate prior to the conception of any children. This contract not only lays out each parties’ responsibilities and obligations but it also may have to be relied upon by a Judge should a dispute arise between yourself, your partner and your surrogate. You’ll want to consult with an attorney who is up to date on the law in this area and who has experience in drafting surrogacy contracts. When it comes to your family, you can never be too careful! Contact our Pittsburgh-based family law firm to talk to one of our experienced attorneys.