Pittsburgh Assisted Reproduction Technology and Surrogacy Lawyers
Egg, Sperm & Embryo Donors in PA
Individuals or couples who are contemplating family formation through Assisted Reproductive Technology (ART) should seek legal advice from an attorney experienced with family formation issues PRIOR to beginning the process. Undertaking family formation without legal advice can create a web of legal problems that are difficult to manuever through.
Traditionally, an individual or couple who have fertility or other medical issues and are in need of donated eggs (ovums), sperm or embryos utilize the services of a medical clinic to obtain the gametes or embryos. Donated sperm, eggs and embroys received from a licensed medical facility undergo strict medical evaluation and testing for genetic disorders as well as testing for HIV, sexually transmitted diseases and other medical issues. Donor sperm is also quarantined for a minimum of 180 days and subject to two series of medical testing. Clinics also screen donors for their medical and sexual history and offer pychological counseling to the donors. From a legal standpoint, all medical clinics will require a donor contract between the known or anomymous donor and the intended recipient. The recipients are ususally charged a fee for receiving the donated eggs, sperm or embryos as part of the overall fees of the in-vitro fertilization (IVF) process.
In other circumstances, a friend or family member may agree to be an egg or sperm donor. This is often termed a directed donation or known donation. Once again, the use of a FDA regulated medical lab for the sperm donation is the medically safest way to obtain and use a directed donation and a formal Donation Contract is legally required to establish the parties’ rights or lack thereof. For obvious reasons, a known or directed egg donation may only occur with the assistance of an IVF physician or clinic.
The Pennsylvania Supreme Court has held that private agreements between a biological parent and a known sperm donor that the known sperm donor will have no financial responsibilities or legal rights concerning the child shall be enforceable against both parties, as long as the child was conceived through artificial insemination and the agreement was made before the child was conceived. In other words, in this situation the biological parent shall not be entitled to child support from the known donor and the known donor shall not be entitled to custody rights.
Some individuals or couples may go a very informal route to obtain sperm donation by seeking a specimen from an Internet chat room or message board. These informal methods of sperm donation are ripe for legal problems due to the lack of Donor Contracts. Furthermore, the medical risk to recipient and any child due to lack of medical pre-testing would far outweigh any cost savings. The informal method of sperm donation is ripe for emotional, medical and legal problems.
Surrogacy is a third party reproduction process whereby a woman agrees to carry a fetus and give birth to a child she will not raise. The woman is called the surrogate, surrogate mother or carrier. The Intended Parent(s) is/are the individual or couple who intend to raise the child after its birth. Surrogacy is particularly popular with infertile couples, those who have medical risks associated with pregnancy and gay or transgendered couples.
Types of Surrogacy
The two types of surrogacy are traditional surrogacy and gestational surrogacy. In traditional surrogacy, the pregnancy is usually achieved by artificial insemination from the intended father or a sperm donor. The surrogate mother is the biological mother of the child delivered since she provided the egg. The intended father may or may not be the biological father of the child. In gestational surrogacy, the surrogate mother (gestational carrier) carries a baby conceived through the IVF process. The egg may be from the intended mother or the egg may be from an egg donor (ovum donor). The intended mother’s egg or a donor egg is removed and fertilized with the sperm of the intended father or a donor sperm. In the IVF process, the eggs are fertilized outside of the woman’s body and the resulting embryos placed in a surrogate mother (gestational carrier), who then carries the baby to term.
Surrogacy and Donation Contracts in Pennsylvania
Pennsylvania laws protect the rights of Intended Parents in egg donation, sperm donation, embryo donation and surrogacy cases when valid contracts are entered into by the parties establishing the expectations, rights, and responsibilities of the donors, genetic parents, gestational or traditional surrogate, the carrier’s husband and Intended Parents. Never should you consider forming a family with assisted reproductive technology without the advice of a lawyer experienced in this field.
Attorney Lisa Marie Vari has assisted clients with egg, sperm and embryo donation contracts as well as surrogacy contracts since 1989. She is a member of the American Bar Association’s Reproductive Technology Committee of the Family Law Section, a member of the Legal Practice Group of the American Society for Reproductive Medicine (ASRM) and a professional services member of RESOLVE, the National Infertility Association. She has drafted contracts setting forth the legal rights and responsibilities of recipients of egg, sperm and embryo donations as well as acting as counsel for donors in reviewing donation contracts. Attorney Vari has also assisted both Intended Parents, Gestational Surrogates and Traditional Surrogates in negotation of and drafting Surrogacy Contracts.
Our experienced Pennsylvania assisted reproduction lawyers typically address the following issues in our Pennsylvania surrogacy contracts:
- Provision for independent legal representation of the Carrier and her husband and payment of those legal fees by Intended Parents;
- Release of medical records of Carrier related to her health, prior pregnancies and any history of sexually transmitted diseases;
- Criminal history and child abuse background checks;
- Medical and psychological pre-screening for Intended Parents and Gestational or Traditional Surrogate;
- Identification of physicians and clinics to be utilized;
- Embryo Transfer procedures including number of embryos, number of cycles and provision for bed rest following transfer;
- Pre-natal health care and lifestyle of Carrier (diet, tobacco, caffeine, alcohol, toxic chemicals, exercise, travel, etc.);
- Medical insurance and life insurance issues;
- Payment of expenses not covered by insurance;
- Genetic and other prenatal testing for fetal abnormalities and parties’ expectations regarding termination of pregancy or selective reduction of number of fetuses;
- Parental rights and obligations to be vested in Intended Parents;
- Legal issues involving pre-birth orders, birth certificates and any second or step-parent adoption issues;
- Birthing agreement including delivery location, people to be present, potential for cesearan section, first contact with child, naming of child, person(s) to make medical decisons for child;
- Life support provisions for carrier and child;
- Paternity and maternity testing and implications of genetic relationship of carrier or her spouse to child;
- Post-birth relationship and contact
- Legal issues in the event of divorce or death of Intended Parents;
- Confidentiality issues including social media posts;
- Compensation to Surrogate including reimbursements;
- Establishment of trust account for payments and timing of payments;
- Contract jurisdiction, modification, enforcement and interpretation issues
- Breach of contract provisions and remedies of the parties.
When expectations and legal rights are unclear, animosity, hurt feelings and legal uncertainty can enter the relationship of Intended Parents and Carrier. With careful planning and advice from an experienced PA Assisted Reproductive Technology and Surrogacy Lawyer, the parties can focus on what’s most important – bringing a healthy child into the Intended Parents’ lives.
Pennsylvania Pre-Birth Orders
Our Pittsburgh surrogacy attorneys are familiar with the procedures to establish legal parentage through pre-birth orders utilizing Pennsylvania’s “Assisted Conception Birth Registrations” procedure. This procedure was developed by Pennsylvania’s Department of Health in October of 2003 to establish a uniform state procedure for birth certificates involving children born through assisted conception. The procedure requires a “Certificate of Live Birth” to be completed by the hospital or birthing facility wherein the information from the gestational carrier is listed. In addition, a “Supplemental Report of Assisted Conception” form is completed which will list information from the intended mother and intended father, if appropriate. Finally, this procedure requires a certified copy of a court order signed by an Orphans’ Court judge from the county where the birth took place or the home county of the intended parents. The Assisted Conception Parentage Decree must state that any certified copies of the birth record of the child should reflect the names of the intended parents. All of these documents must be submitted to the Pennsylvania Department of Health within six months from the date of birth or the Certificate of Live birth with the gestational carrier’s information will be registered as the official birth certificate by the Division of Vital Records.
While there is a procedure established by the Pennsylvania Department of Health, there are no statutory requirements that require an individual judge in any county to issue a requested pre-birth order of court. It is not likely that a judge will refuse to issue the pre-birth order; however, it is within the assigned Orphans’ Court judge’s sole discretion to make the decision. The procedure is known to have been approved by individual judges in Allegheny County, Westmoreland County and Indiana County.
PA Birth Certificate Issues
As stated above, if the Intended Parents are the genetic relatives of the child, a Pennsylvania Pre-Birth Order may be obtained which compels the PA Department of Health, Vital Records Division to issue the child’s birth certificate including the Intended Parents as the child’s mother and father.
In a situation where the Intended Father is the biological father of the child, but the Carrier is also the egg donor (a Traditional Surrogacy), the Vital Records Division can include the name of the biological father on the birth certificate even if the Carrier is married to her husband. This is known as a registration as other than the child of the mother’s husband. It requires the acknowledgement of the Carrier’s husband that he is not the biological or presumed father and that of the genetic father that he is the biological father. In this Traditional Surrogacy situation, the Carrier’s parental rights must be terminated and the Intended Mother must complete a Step-parent adoption to secure her legal rights to the child. Many lawyers and fertility clinics hesitate to assist with the legal and/or medical issues in traditional surrogacy cases due to the genetic relationship between Surrogate and child.
In same-sex parent situations involving lesbian spouses, the PA Division of Vital Records has recently announced that they will issue birth certificates naming both same sex spouses as the parents of a child born during the same-sex marriage. Same-sex lesbian spouses are highly advised to proceed with a step-parent adoption to remove any potential rights of the sperm or egg donor. Same-sex married gay parents in Pennsylvania can have the biological father’s name listed on the child’s birth certificate and have the non-biological father complete the step-parent or second parent adoption process.
Cases When Assisted Conception Birth Registration Procedures Are Not Available
Couples should not worry that their desire to form a family may be hampered if the Pennsylvania Department of Health Assisted Conception Birth Registration procedure can not be completed on their behalf. An alternative to the Assisted Conception Birth Registration procedure is the use of Pennsylvania adoption proceedings.
If the adoption process is utilized and one of the intended parents is also a genetic parent, the adoption process may be simplified such that only the stepparent adoption procedures may be required by the Orphans’ Court. Along those same lines, if a same-sex couple wishes to complete an adoption and one partner is genetically related to the child, the non-biological parent can obtain parentage rights through a second parent adoption. Pennsylvania law recognizes the rights of same-sex couples for adopting both when there is a genetic relationship and in situations when there is no genetic relationship to the child.
To read more about Pennsylvania appellate court cases involving surrogacy, artificial insemination, and the legal rights of egg and sperm donors, click here.
Contact Our Pittsburgh Surrogacy Attorneys & Assisted Reproduction Lawyers Today
Email our Pennsylvania surrogacy and assisted reproduction law firm to schedule a consultation to speak with one of our experienced Pittsburgh surrogacy and assisted reproduction lawyers or call us today at one of our offices:
Pittsburgh office at 412-281-9906
Canonsburg, Washington County at 724-436-5500
Cranberry Township (Butler County, PA) at 724-776-9906
Clearfield County at 814-290-0587
Toll-free at 1-844-827-4529 (1-844-VARI-LAW)
Appointments may also be available in other meeting locations throughout Western Pennsylvania upon advance arrangements with our office. Ask the secretary scheduling your appointment for details including appointment locations.