In Re BABY S. Appeal of S.S. , 2015 Pa. Super. 244 ( 2015 )

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2015 PA Super 244IN RE: BABY S. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
:
APPEAL OF: S.S. : No. 1259 EDA 2015
Appeal from the Order Entered April 23, 2015
In the Court of Common Pleas of Montgomery County
Orphans’ Court at No(s): 2014-X2543
BEFORE: GANTMAN, P.J., PANELLA, J., and SHOGAN, J.
OPINION BY GANTMAN, P.J.: FILED NOVEMBER 23, 2015
Appellant, S.S., appeals from the order entered in the Montgomery
County Court of Common Pleas, which confirmed Appellant as the legal
mother of Appellee Baby S., and found Appellant had breached the terms of
her surrogacy contract with L.S., the biological father of Baby S., and J.B.,
the gestational carrier of Baby S. We affirm.
The relevant facts and procedural history of this appeal are as follows.
Appellant and L.S. were married in August 2011. They decided to have a
child, and Appellant underwent fertility treatments. Appellant and L.S.
ultimately agreed to use a gestational carrier. In 2012, they contacted
Reproductive Possibilities, a New Jersey company that offers services to
individuals and couples who wish to have children with the use of assisted
reproductive technology. Reproductive Possibilities facilitates and
coordinates gestational carrier arrangements for its clients. Melissa
Brisman, an attorney who is the sole owner of Reproductive Possibilities, met
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with Appellant and L.S. to discuss the option of gestational surrogacy.
Appellant and L.S. signed a service agreement with Reproductive Possibilities
on November 8, 2012. The service agreement identified Appellant and L.S.
as “Intended Parents” and provided in part as follows:
Intended Parents desire to have a child or children.
Intended Parents have decided to retain Reproductive
Possibilities to assist them in selecting, coordinating and
assisting to screen a Gestational Carrier who will carry and
bear a child conceived from embryos belonging to
Intended Parents, and to help Intended Parents navigate
their journey through the gestational carrier process.
* * *
Intended Parents may terminate this Agreement in writing
at any time for any reason, provided the Gestational
Carrier has not undergone the IVF/Embryo Transfer. If the
Gestational Carrier has already undergone the IVF/Embryo
Transfer and Intended Parents wish to terminate this
Agreement, they may only do so once it is confirmed that
Gestational Carrier is NOT pregnant.
(N.T. Hearing, 3/11/15, Exhibit RL-1; Supp. R.R. at 17a, 25a). Appellant
and L.S. also hired Attorney Brisman to represent them during the surrogacy
process. Appellant told Attorney Brisman she wanted a gestational carrier in
a state where Appellant could be named the mother on the child’s birth
certificate without having to adopt the child. Attorney Brisman has handled
numerous surrogacy cases in approximately twenty to thirty counties in
Pennsylvania, and she advised a formal adoption would be unnecessary
under Pennsylvania law in this context.
J.B. resides in Pennsylvania and had previously served as a gestational
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carrier for another couple. She applied to be a surrogate again in 2012 and
Reproductive Possibilities matched her with Appellant and L.S. In an email
sent to J.B. on November 8, 2012, Appellant stated:
[L.S.] and I have wanted a child since we started dating
four years ago. I come from a family of three, and the
memories I share with my sisters, I will have for a lifetime.
[My child, J.S.,] absolutely fulfills me, but I do long for
another child to contribute to the laughter and love of our
family.
I am a person who can appreciate the magnitude of what a
gestational carrier will be doing for us. It really is a
miracle that something like this can actually take place;
that you are willing to work with a couple you don’t even
know to conceive a baby and carry that baby and nurture
it for 40 weeks for us. … Once the baby arrives, I expect
to stay in touch; however, I don’t expect the
communication to be as often as it would during the
pregnancy. I would probably reach out a few times a year
and send pictures of the child.
(N.T. Hearing, Exhibit P-1; Supp. R.R. at 36a). On May 14, 2013, Appellant
and L.S. entered into a service agreement with an egg donation agency
called Tiny Treasures. The agreement referred to Appellant and L.S. as
“Intended Parents” and stated in part:
Intended Parents desire to have a child or children related
to them and the Intended Parents are unable to produce
viable eggs of their own and/or it is inadvisable for the
Intended Parents to use their own eggs to achieve a
pregnancy due to a genetically or medically related
condition.
* * *
[] Intended Parents desire to retain the services of Tiny
Treasures, LLC, and Tiny Treasures, LLC desires to provide
the Intended parents with its services of locating an Egg
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Donor and other services as provided in this Agreement for
the express purpose of egg donation.
(N.T. Hearing, Exhibit RL-2; Supp. R.R. at 37a). Appellant and L.S.
ultimately executed an ovum donation agreement with an anonymous donor
selected through Tiny Treasures. The ovum donation agreement provided in
part as follows:
The sole purpose of this Agreement is to enable Intended
Mother and Intended Father to have a child by means of in
vitro fertilization using ova donated by Donor and semen
from the Intended Father or a sperm donor. …
* * *
[] The Parties understand that the Intended Parents have
spent many years, suffered much pain and agony to bring
a Child into their family and are now relying greatly on
Donor to help produce a Child.
* * *
Intended Parents warrant that they have discussed the
implications of parenting a Child conceived by ovum
donation, and that they are comfortable and
knowledgeable regarding such implications.
* * *
Donor agrees that the Intended Mother shall enter her
name as the mother and Intended Father shall enter his
name as the father on the birth certificate of any Child
born from such Donated Ova. Donor further agrees that it
is in the best interests of the Child that she not attempt to
assert her maternity by any means, including a maternity
action or otherwise, or attempt to form a parent-child
relationship with the Child.
Donor understands that the Intended Parents shall be
conclusively presumed to be the legal parents of any Child
conceived pursuant to this Agreement. Donor shall not
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have any parental rights. Intended Parents shall take
parental responsibility and custody of any Child conceived
pursuant to this Agreement, immediately after birth,
regardless of whether the Child suffers from any physical
or mental disease or defect.
(N.T. Hearing, Exhibit RL-4; Supp. R.R. at 49a-71a). Having selected an egg
donor, Appellant, L.S., and J.B. entered into a gestational carrier contract on
September 12, 2013. The contract identified Appellant (S.S.) and L.S. as
the intended mother and father respectively, and J.B. as the gestational
carrier, and provided in part as follows:
[] Intended Mother…wishes to be the mother of a child
who is biologically related to her husband….
* * *
[T]he Parties mutually agree as follows:
* * *
It is the intention of the Gestational Carrier that she is
entering into this Agreement to bear a Child for the
Intended Parents and not for the purpose of having a Child
who the Gestational Carrier will raise or with whom she will
have a legal relationship.
[] The Intended Parents agree to begin working on
declaring their legal parentage by the twentieth (20 th)
week of pregnancy and agree to accept custody and legal
parentage of any Child born pursuant to this Agreement.
… The Gestational Carrier shall have no parental or
custodial rights or obligations of any Child conceived
pursuant to the terms of this Agreement….
* * *
[T]he Intended Parents agree to assume legal
responsibility for any Child born pursuant to this
Agreement as long as the Parties otherwise comply with
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the terms of this Agreement….
(N.T. Hearing, Exhibit P-2; R.R. at 20a-42a). The contract further provided
that Appellant or L.S. could terminate the agreement under certain
conditions but not after J.B. became pregnant in the manner described.
Additionally, the contract contained provisions directing Appellant and L.S. to
compensate J.B. for certain expenses associated with the surrogacy process
and pregnancy. Appellant paid over $100,000.00 to cover those expenses
and L.S. contributed a $5,000.00 payment.
J.B. underwent an embryo transfer procedure on November 7, 2013.
The embryo was created from the sperm of L.S. and an egg from the
anonymous donor and was implanted in J.B.’s uterus. Appellant and L.S.
were present for the procedure and repeatedly thanked J.B. for agreeing to
carry their baby. The embryo transfer was successful, and J.B.’s pregnancy
was confirmed on November 18, 2013. In preparation to raise another child,
Appellant and L.S. moved from their New York City brownstone to a five-
bedroom house in New Jersey. During the pregnancy, Appellant and L.S.
communicated with J.B. through phone calls, e-mails, and text messages.
In March 2014, J.B. had a twenty-week ultrasound, which Appellant and L.S.
attended. Appellant and L.S. again expressed their gratitude to J.B., and
J.B. described the meeting as positive. At no time did Appellant indicate to
J.B. that Appellant did not intend to be the mother of Baby S.
In April 2014, Attorney Brisman began preparations to obtain a court
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order designating Appellant and L.S. as the parents of Baby S. on the child’s
birth certificate, pursuant to the Pennsylvania Department of Health (“DOH”)
policy and procedures regarding assisted conception birth registrations.1
Appellant, however, refused to sign the relevant paperwork because
Appellant and L.S. were then having marital difficulties. Appellant sent an
email to an employee at Reproductive Possibilities on April 15, 2015, in
which she stated, “[L.S.] and I are trying to figure out how we can best co-
parent [Baby S.] in the wake of our irreconcilable differences.” (N.T.
Hearing, Exhibit RL-8; Supp. R.R. at 72a). Due to Appellant’s refusal to
cooperate and her intent to seek a divorce, Attorney Brisman did not
attempt to obtain a pre-birth court order naming Appellant and L.S. as the
legal parents of Baby S. Attorney Brisman ultimately withdrew her
representation of Appellant and L.S.
On July 17, 2014, while still pregnant with Baby S., J.B. filed a petition
for “Assisted Conception Birth Registration and to Establish Parentage,”
which sought a court order declaring Appellant and L.S. the legal parents of
Baby S. The petition also requested the court order to direct the DOH to
1
At the hearing on J.B.’s petition, the guardian ad litem introduced a 2004
memorandum from the DOH outlining the procedure in assisted conception
births for placing the names of the intended parents on the baby’s birth
certificate. The memorandum stated the intended parents must submit to
the DOH Division of Vital Records several documents, including (1) a court
order stating that any certified copies of the birth certificate shall list the
intended mother and father as the child’s parents and (2) a supplemental
report of assisted conception containing information from the intended
parents. (See N.T. Hearing, Exhibit GAL-2; Supp. R.R. at 175a-178a).
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issue a birth certificate which named Appellant and L.S. as the parents. The
court subsequently granted J.B.’s motion to amend the petition to include a
count for counsel fees against Appellant.
J.B. gave birth to Baby S. at Doylestown Hospital on August 5, 2014.
J.B. was named as the mother on Baby S.’s birth certificate and no name
appeared for the father. L.S and Baby S. subsequently moved to California,
where L.S. lived before his marriage to Appellant. L.S. applied for medical
assistance from the state of California because Appellant did not add Baby S.
to her health insurance policy. J.B. received a bill from the Children’s
Hospital of Philadelphia for the aftercare of Baby S. J.B. also stated she has
been contacted by the state of California regarding her potential liability for
child support.
Appellant filed a response with new matter to J.B.’s petition on August
12, 2014, in which she claimed the parties’ gestational carrier contract was
unenforceable.2 On September 2, 2014, L.S. filed responsive pleadings to
J.B.’s petition and Appellant’s new matter, as well as a counterclaim against
Appellant for breach of contract, specific performance and counsel fees. The
guardian ad litem for Baby S. also filed responsive pleadings to J.B.’s
petition and to Appellant’s new matter.
Following two days of hearings on March 11, 2015, and April 21, 2015,
the court entered an order on April 21, 2015, which declared Appellant and
2
Appellant also alleged L.S. induced her to sign the contract through fraud
and duress but later abandoned those claims.
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L.S. as the legal parents of Baby S. and authorized the DOH to issue an
amended birth certificate in accordance with the order. The court further
found Appellant had breached the gestational carrier contract and was liable
for J.B.’s legal expenses under the terms of the contract. On April 23, 2015,
the court entered an amended order to correct the birthdate of Baby S. The
court issued a second amended order on May 4, 2015, which added
Appellant’s birth name (initials). Appellant filed a timely notice of appeal
and a concise statement of errors complained of on appeal per Pa.R.A.P.
1925(a)(2)(i).
Appellant raises the following issues for our review:
WHETHER THE PROVISIONS OF THE SURROGACY
AGREEMENT BETWEEN THE PARTIES ATTEMPTING TO
CREATE PARENTAGE OF A CHILD BY CONTRACT ARE
VALID AND ENFORCEABLE UNDER PENNSYLVANIA LAW?
WHETHER PENNSYLVANIA SHOULD RECOGNIZE THE
PRINCIPLE OF “MATERNITY BY ESTOPPEL”?
In her first issue, Appellant argues the Pennsylvania legislature has
declined to enact any law recognizing the validity of surrogacy agreements,
despite its consideration of a bill introduced in 2005 that addressed the
issue. Appellant contends this legislative inaction illustrates the legislature’s
“distinct reluctance” to recognize surrogacy agreements as binding and
enforceable. Appellant asserts the DOH policy regarding assisted conception
birth registration lacks the force or effect of law and is intended merely as
guidance in cases in which all parties agree on the issue of parentage.
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Appellant further claims that no judicial decision in the Commonwealth has
sanctioned surrogacy agreements, and the trial court’s reliance on
Ferguson v. McKiernan, 596 Pa. 78, 940 A.2d 1236 (2007), is misplaced
because the Supreme Court did not address the issue of whether parentage
can be established via contract. Appellant also distinguishes J.F. v. D.B.,
897 A.2d 1261 (Pa.Super. 2006), appeal denied, 589 Pa. 739, 909 A.2d
1290 (2006), as involving only the issue of whether a gestational carrier,
with no genetic relation to the triplets she birthed, had standing to seek
custody of the babies. Appellant submits the J.F. Court refused to address
the validity of the surrogacy contract at issue as “[t]hat task is for the
legislature.” See Appellant’s Brief at 13 (quoting J.F., supra at 1265).
Appellant supports her position with case law from states which have
declared surrogacy contracts void and unenforceable.
Appellant argues Pennsylvania law provides only two ways for a person
to establish parentage—by genetics/biology or by adoption—and neither
situation applies to Appellant. Appellant claims Pennsylvania law does not
provide for parentage by contract, and this Court has no authority to create
a new method to establish parentage. Appellant asserts the surrogacy
contract at issue was an unlawful means of circumventing the statutory
adoption procedure, which was the sole route available for Appellant to be
declared a legal parent of Baby S. Appellant insists J.B. is the legal mother
of Baby S. and a court would have to terminate J.B.’s parental rights
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pursuant to the Adoption Act3 for any adoption of Baby S. to occur.
Appellant further contends the contract impermissibly provided for
compensation to J.B. for releasing custody of Baby S. Alternatively,
Appellant argues that if J.B. had no parental rights to relinquish then
Appellant could not have fulfilled her contractual responsibilities to become
Baby S.’s legal mother under the doctrine of impossibility of performance.
Appellant claims the contract violates public policy because it purports to
create a child-parent relationship without an adoption or judicial oversight,
in direct conflict with Pennsylvania law. Appellant concludes the surrogacy
contract is void and unenforceable as against public policy, and this Court
should determine that Appellant is not the legal mother of Baby S. We
disagree.
The issue of whether a contract is void as against public policy
presents a question of law, and our standard of review is plenary. See
Ridley ex rel. Ridley v. State Farm Mut. Auto. Ins. Co., 745 A.2d 7, 9
(Pa.Super. 1999), appeal denied, 572 Pa. 708, 813 A.2d 843 (2002).
“Generally, a clear and unambiguous contract provision must be given its
plain meaning unless to do so would be contrary to a clearly expressed
public policy.” Eichelman v. Nationwide Ins. Co., 551 Pa. 558, 563, 711
A.2d 1006, 1008 (1998).
Whether a cause of action or claim for relief is repugnant
to public policy implicates certain standards:
3
23 Pa.C.S.A. §§ 2101-2938.
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In our judicial system the power of courts to
formulate pronouncements of public policy is sharply
restricted; otherwise they would become judicial
legislatures rather than instrumentalities for the
interpretation of law. Generally speaking, the
Legislature is the body to declare the public policy of
a state and to ordain changes therein…. This is
peculiarly so where a matter of expediency is up for
consideration…. In many cases, on questions of
good morals, as opposed to mere expediency, the
courts may declare and apply the public policy of the
State; …again, where an alteration in public policy on
any point of general interest has actually taken
place, and is indicated by long-continued change of
conduct on the part of the people affected, when
such a change has become practically universal, the
courts may recognize this fact and declare the
governing public policy accordingly…. But neither of
these rules controls the…case…where no question of
morality is involved; it is purely one of expediency;
and no gradual or universal change of customary
practice has occurred. Public policy in the
administration of the law by the court is essentially
different from what may be public policy in the view
of the legislature. With the legislature it may be,
and often is, nothing more than expediency. The
public policy which dictates the enactment of a law is
determined by the wisdom of the legislature. Public
policy…with the latter [the legislature] may be, and
often is, nothing more than expediency; but with the
former [the courts], it must, and may only, be a
reliance upon consistency with sound policy and
good morals as to the consideration or thing to be
done.
The right of a court to declare what is or is not in
accord with public policy does not extend to specific
economic or social problems which are controversial
in nature and capable of solution only as the result of
a study of various factors and conditions. It is only
when a given policy is so obviously for or against the
public health, safety, morals or welfare that there is
a virtual unanimity of opinion in regard to it, that a
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court may constitute itself the voice of the
community in so declaring. There must be a
positive, well-defined, universal public sentiment,
deeply integrated in the customs and beliefs of the
people and in their conviction of what is just and
right and in the interests of the public [well-being].
Familiar illustrations are those involving
unreasonable restraints of marriage or of trade,
collusive arrangements for obtaining divorces,
suppression of bids for public contracts, interference
with freedom of conscience or religion. If, in the
domain of economic and social controversies, a court
were, under the guise of the application of the
doctrine of public policy, in effect to enact provisions
which it might consider expedient and desirable,
such action would be nothing short of judicial
legislation, and each such court would be creating
positive laws according to the particular views and
idiosyncrasies of its members. Only in the clearest
cases, therefore, may a court make an alleged public
policy the basis of judicial decision.
The standard for deciding a case on strict public
policy grounds is unquestionably high.
Olympus Corp. v. Canady, 962 A.2d 671, 675-76 (Pa.Super. 2008)
(internal citations omitted). When assessing whether a contract violates
public policy:
[T]his Court is mindful that public policy is more than a
vague goal which may be used to circumvent the plain
meaning of the contract.
Public policy is to be ascertained by reference to the
laws and legal precedents and not from general
considerations of supposed public interest. As the
term “public policy” is vague, there must be found
definite indications in the law of the sovereignty to
justify the invalidation of a contract as contrary to
that policy…. Only dominant public policy would
justify such action. In the absence of a plain
indication of that policy through long governmental
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practice or statutory enactments, or of violations of
obvious ethical or moral standards, the Court should
not assume to declare contracts…contrary to public
policy. The courts must be content to await
legislative action. …
It is only when a given policy is so obviously for or
against the public health, safety, morals or welfare
that there is a virtual unanimity of opinion in regard
to it, that a court may constitute itself the voice of
the community in so declaring [that the contract is
against public policy].
Ferguson, supra at 93 n.16, 940 A.2d at 1245 n.16 (quoting Eichelman,
supra at 563, 711 A.2d at 1008) (internal citations omitted). See also
Shick v. Shirey, 552 Pa. 590, 716 A.2d 1231 (1998) (recognizing
independent authority of courts to discern public policy in absence of
legislation but rejecting claim that legislature’s failure to amend Workers’
Compensation Act to include provisions for filing claim for retaliatory
discharge rendered Court powerless to recognize that cause of action;
stating: “No sound analysis can be drawn from legislative silence. An
equally compelling argument may be made that the legislature has not
perceived that retaliatory discharge for filing of workers’ compensation
claims has become such a pervasive problem that it requires the experience
of an administrative agency”); J.F., supra at 1279 (stating: “Only in the
clearest of cases may a court declare a contract void as against public
policy”).
The Ferguson Court found binding and enforceable an oral agreement
between a mother and a sperm donor (who previously was in a relationship
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with the mother), according to which the sperm donor agreed to surrender
all rights to the children arising from his biological paternity in return for his
release from any attendant support obligations. Ferguson, supra. The
Court rejected the mother’s claim that the contract violated public policy,
characterizing her claim as “unsustainable in the face of the evolving role
played by alternative reproductive technologies in contemporary American
society.” Id. at 93, 940 A.2d at 1245.
It derives no authority from apposite Pennsylvania law,
and it violates the commonsense distinction between
reproduction via sexual intercourse and the non-sexual
clinical options for conception that are increasingly
common in the modern reproductive environment. The
inescapable reality is that all manner of arrangements
involving the donation of sperm or eggs abound in
contemporary society, many of them couched in contracts
or agreements of varying degrees of formality. An
increasing number of would-be mothers who find
themselves either unable or unwilling to conceive and raise
children in the context of marriage are turning to donor
arrangements to enable them to enjoy the privilege of
raising a child or children, a development neither our
citizens nor their General Assembly have chosen to
proscribe despite its growing pervasiveness.
Id. (internal citation and footnote omitted). Our Supreme Court further
stated:
[W]e cannot agree with the [trial court and Superior Court]
that the agreement here at issue is contrary to the sort of
manifest, widespread public policy that generally animates
the courts’ determination that a contract is unenforceable.
The absence of a legislative mandate coupled to the
constantly evolving science of reproductive technology and
the other considerations highlighted above illustrate the
very opposite of unanimity with regard to the legal
relationships arising from sperm donation, whether
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anonymous or otherwise. This undermines any suggestion
that the agreement at issue violates a dominant public
policy or obvious ethical or moral
standards…demonstrating a virtual unanimity of
opinion…sufficient to warrant the invalidation of an
otherwise binding agreement.
Id. at 97, 940 A.2d at 1248 (internal citations and quotation marks
omitted). The Court also observed that but for the parties’ agreement, the
children would not have been born. See id. See also J.F., supra(declining to address validity of surrogacy contract but holding gestational
carrier without biological connection to children was not children’s legal
mother and had no standing to challenge biological father’s right to
custody).
Instantly, the trial court reasoned as follows:
We can state, without any hesitation, that the contract
here at issue must be enforced. The parties all had the
benefit of able counsel before entering into it. Every detail
of the process was spelled out to the nth degree.
Everything proceeded according to plan until the marriage
of L.S. and [Appellant] unraveled. Baby S. is in the world
only because of this and the other related contracts which
[Appellant] signed willingly and voluntarily. Indeed, it
was, for the most part, [Appellant’s] assets that enabled
this baby to be created and delivered.
* * *
[W]e will not presume to declare the Commonwealth’s
public policy on the issue at hand. Indeed, as pointed out
by counsel for L.S. and J.B. as well as by the guardian ad
litem, the closest thing we have to a “long governmental
practice”—a phrase used by the Supreme Court in the
Ferguson case—on the topic is the [DOH’s] 20-year old
directive designed to facilitate assisted conception birth
registrations. That this administrative procedure exists
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and courts in the Commonwealth routinely enter orders
that authorize the issuance of birth certificates for children
born as a result of alternate reproductive technologies
would clearly militate against a finding that surrogacy
contracts violate public policy. Instead, we determine that
the parties to this contract must be held to its terms.
While we have no power to force [Appellant] to assume
her role as mother and participate fully in all aspects of
Baby S.’s life, we can impose upon her the role of legal
mother with, at least, the financial responsibilities that
entails.
(Trial Court Opinion, filed May 28, 2015, at 10, 14). We agree with the
court’s analysis. Appellant does not dispute that she freely entered into the
gestational carrier contract and related agreements, which unambiguously
stated that she and L.S. were the intended legal parents of Baby S. Those
agreements made clear J.B. would have no parental rights or obligations
with respect to Baby S., and J.B.’s sole role was that of a gestational carrier.
In the year leading up to the pregnancy and for months after the pregnancy
was confirmed, Appellant’s actions were consistent with her declared
intention to be Baby S.’s mother. Baby S. would not have been born but for
Appellant’s actions and express agreement to be the child’s legal mother.
See Ferguson, supra.Appellant failed to meet her burden to show the gestational carrier
contract is contrary to public policy in Pennsylvania. Despite Appellant’s
emphasis on the fact that no statute recognizes the validity of surrogacy
agreements, the absence of a legislative mandate one way or the other
“undermines any suggestion that the agreement at issue violates a dominant
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public policy or obvious ethical or moral standards…demonstrating a virtual
unanimity of opinion…sufficient to warrant the invalidation of an otherwise
binding agreement.” See id. at 97, 940 A.2d at 1248; Shick, supra.Moreover, case law from the past decade reflects a growing
acceptance of alternative reproductive arrangements in the Commonwealth.
The Ferguson Court expressly recognized the enforceability of a contract
that addressed parental rights and obligations in the context of assisted
reproductive technology, which in that case involved sperm donation. See
id. The Court acknowledged “the evolving role played by alternative
reproductive technologies in contemporary American society.” Id. at 93,
940 A.2d at 1245. The Court acknowledged “non-sexual clinical options for
conception…are increasingly common in the modern reproductive
environment” and noted that the legislature had not prohibited donor
arrangements despite their “growing pervasiveness.” Id. The Court’s
language and focus on the parties’ intent is at odds with Appellant’s position
that gestational carrier contracts, a common non-sexual clinical option for
conceiving a child, violate a dominant public policy based on a “virtual
unanimity of opinion.” See id. Appellant’s claim is further undercut by the
long-established DOH procedure for placing the intended parents’ names on
a child’s birth certificate when a gestational carrier is used, and the
testimony of Attorney Brisman, who has successfully used the DOH
procedure hundreds of times in Pennsylvania.
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Appellant is incorrect to propose she could become the legal mother of
Baby S. only through a formal adoption, which would require termination of
J.B.’s parental rights. Acting solely as the gestational carrier, J.B. was not
the biological mother of Baby S. See J.F., supra. Therefore, J.B. had no
parental rights to Baby S. and none to relinquish under the Adoption Act.
See 23 Pa.C.S.A. § 2502. J.B. was named on the birth certificate as a
ministerial act precisely because Appellant had reneged on the surrogacy
contract.
Further, the Adoption Act is not the exclusive means by which an
individual with no genetic connection to a child can become the child’s legal
parent; and nothing in the Adoption Act evinces a “dominant public policy”
against the enforcement of gestational carrier contracts. The legislature has
taken no action against surrogacy agreements despite the increase in
common use along with a DOH policy to ensure the intended parents acquire
the status of legal parents in gestational carrier arrangements. Absent an
established public policy to void the gestational carrier contract at issue, the
contract remains binding and enforceable against Appellant. See
Eichelman, supra. Accordingly, we affirm.4
Order affirmed.
4
Due to our disposition, we decline to address Appellant’s second issue
regarding the principle of “maternity by estoppel.”
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/23/2015
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