GESTATIONAL SURROGACY LAW PENNSYLVANIA
There are no statutes or published case law specifically permitting or prohibiting surrogacy in Pennsylvania; however, there is unpublished case law that permits surrogacy: J.F. v. D.B., 897 A.2d 1261 (2006) and Whitewood v. Wolf, no. 1:13-cv-1861 (2014). This ruling made it legal for surrogacy to be practiced in Pennsylvania, and it continues to be a popular way of growing families in this state.
Although the following guide can give you a better understanding of the general rules and regulations of surrogacy in Pennsylvania, it is not meant to be used as legal advice. It is important to consult with an experienced attorney to guide you through your unique journey.
Below is a list of some of the most frequently asked questions about surrogacy in Pennsylvania.
Is Gestational Surrogacy Legal in Pennsylvania?
Yes. There are no statutes or published case law specifically permitting or prohibiting surrogacy, but there is unpublished case law that permits surrogacy.
Is Traditional Surrogacy Legal in Pennsylvania?
Yes. Traditional surrogacy is permitted in Pennsylvania because no statute or published case law prohibits it. However, a pre-birth order is not possible because the traditional surrogate cannot terminate her parental rights until 72 hours after the child’s birth. Traditional surrogates also cannot be compensated.
Is Compensated Surrogacy Legal in Pennsylvania?
Compensated surrogacy is allowed in Pennsylvania for gestational surrogates but not for traditional surrogates; this is something that is established when the surrogacy contract between surrogates and intended parents is drafted. In addition to their base pay, Surrogates are compensated for their time, the medical risks they accept, and the list of expenses below:
- Mock cycle compensation
- Embryo transfer compensation
- Starting medication compensation
- Monthly allowance for miscellaneous expenses
- Monthly Housekeeping budget
- Maternity clothing budget
- Medical expenses
- Travel to and from clinic/hospital
- Lost wages if applicable
- Child care if bed rest is required
- Term life insurance
- Medical insurance
- Independent legal counsel
- Psychological counseling
- Other depending on agency
Creating a Pennsylvania Surrogacy Contract
There are no state regulations that address the process of creating surrogacy agreements in Pennsylvania. However, surrogacy contracts in Pennsylvania, and every other state, must be created by surrogate attorneys; intended parents and surrogates must work with separate surrogacy attorneys throughout the execution of the contract to ensure both parties’ interests and rights are protected.
These attorneys will negotiate an agreement that addresses the following:
- The rights and responsibilities of each party
- Any potential risks and liabilities and the steps to take should they occur
- Surrogate compensation and other financial information, like surrogacy insurance
- Agreements on sensitive issues like selective reduction and termination
- Contact expectations for both parties
- And more
Once the contract has been finalized and signed by both parties, the medical process can begin.
Determining Legal Parentage in Pennsylvania
The availability of pre-birth parentage orders for intended parents will vary based on the county and the judge requested to issue the order. In practice, more progressive judges will grant pre-birth parentage orders before birth to married couples, unmarried couples, and individuals, even if they have no genetic link to the child being born via surrogacy. More conservative judges, however, will not grant parentage declarations.
Same-Sex Surrogacy in Pennsylvania
Q: Is Same-Sex Surrogacy Legal in Pennsylvania?
A: Yes. Same-sex couples and LGBT+ intended parents have the same legal rights and will experience generally the same surrogacy process as opposite-sex couples, with the exception of likely requiring an egg donor or sperm donor to complete the IVF procedure.
Q: Are There any Additional Laws Impacting Same-Sex Parenting in Pennsylvania?
A: No. There are no additional laws impacting same-sex parents in this state.
Q: Are Surrogacy Contracts (Whether Compensated or Altruistic) Enforceable in Pennsylvania?
A: Yes. Surrogacy contracts are enforceable in a court of law in Pennsylvania.
Q: Are There Any Particular Laws for Parents Outside the U.S. Who Complete a Surrogacy in Pennsylvania?
A: No. International intended parents are subject to the same Pennsylvania surrogacy process as domestic intended parents. It is important, however, that Intended parents from another country speak with an immigration lawyer to ensure they follow the proper legal steps for taking their child home.
Q: When do Intended Parents Need to Complete an Adoption After Birth?
A: Intended parents who are unable to obtain a parentage order will be required to complete a post-birth adoption to obtain and secure their legal parental rights.
The Pennsylvania adoption statute provides for the post-birth adoption of a child born through surrogacy in the county where the intended parents reside. In a traditional surrogacy, the Pennsylvania adoption laws regarding consent and payment of living expenses will apply.
Q: Does Pennsylvania Allow Second-Parent Adoptions? Who Would Need to Complete a Second-Parent Adoption vs. a Stepparent Adoption (If Applicable)?
A: Yes. Second-parent adoptions are legal in Pennsylvania for unmarried couples. Stepparent adoptions are available to married couples.
Q: What Happens in Cases Where Intended Parents Use a Donor Egg, Sperm or Embryo?
A: If intended parents use an anonymous egg, sperm, or embryo donation, the donor’s parental rights do not need to be legally terminated. However, if Pennsylvania intended parents use a known donor, they will need to work with a Pennsylvania surrogacy attorney to create a donor contract that outlines expectations and responsibilities and terminate the rights of the egg, sperm, or embryo donor.
REPRODUCTIVE LAW PRACTITIONERS
Lisa Marie Vari
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