In re: Baby S.S., 128 A.3d 296 (Pa. Super. 2015)

S.S. (“Mother”) and L.S. (“Father”) were a married couple who wished to have a baby but experienced difficulties with fertility.  They ultimately decided to have a donor egg fertilized by the Father’s sperm, which would then be carried by a surrogate, or gestational carrier.  The Parents entered into contracts with a company that matches surrogates and intended parents, and facilitates that relationship; with an egg donation agency; and with an anonymous egg donor.

Once a surrogate was chosen, the Parents entered into a contract with her.  That contract provided, in part, “The Intended Parents agree to assume legal responsibility for any Child born pursuant to this Agreement….”  Also under their agreement, prior to the baby’s birth the Parents were to obtain a Court order that they were to be designated the parents of the baby on the birth certificate.

The surrogate underwent an embryo transfer procedure, which was successful, and her pregnancy was confirmed.  The Parents maintained communication with the surrogate and attended her prenatal appointments.  However, about five months into the pregnancy, the Parents separated and began divorce proceedings.  Mother refused to participate in the attempt to get the Court order naming her the child’s mother, and she cut off all contact with the surrogate.

Eventually the baby was born.  The surrogate was identified on the birth certificate as the child’s biological mother.  Father was not named on the birth certificate but took custody of the baby and moved to California.

The surrogate then got a hospital bill related to the birth of the baby (which was to have been paid by the Parents) and received notice from the state of California that she may be liable for child support.

The surrogate sued Mother and alleged that she breached the surrogacy contract.  Among other arguments Mother raised, she contended that the surrogacy contract was void as against public policy, and that the surrogate was the biological mother, which position could be terminated only by adoption.

The Superior Court of Pennsylvania rejected Mother’s argument.  It found that Mother had freely entered into the surrogacy and other contracts, all of which stated clearly that Mother and Father would be the legal parents of the child.  The Court noted that while some other states have held surrogacy contracts unenforceable, in Pennsylvania there has been a “growing acceptance of alternative reproductive arrangements.”  Also, the fact that the legislature has not issued any mandates with respect to surrogacy contracts “undermines any suggestion that the agreement at issue violates a dominant public policy or obvious ethical or moral standards….”

The Court held that the surrogacy contract was valid and enforceable, that Mother had breached that agreement, and that she is the legal mother of the child.  It found also that the surrogate could not be the biological mother of the child, as it was not her egg from which the child grew.  Mother’s appeal to the Supreme Court of Pennsylvania was denied.


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