STATE SURROGACY LAW:

Pennsylvania Surrogacy Laws

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Overview

Surrogacy in Pennsylvania has been established through case law. The In Re: Baby S. opinion issued by the Superior Court of Pennsylvania in 2015 (2015 PA Super 244) confirmed the enforceability of gestational surrogacy contracts in Pennsylvania, established through the Pennsylvania Department of Health’s Assisted Conception Birth Registration process, as well as Intended Parents’ legal parentage of such child born via gestational surrogacy, regardless of whether Intended Parents were biologically related to the child. This case law cleared the way for recognizing surrogacy contracts and establishing parentage for the Intended Parent(s).

Types of Surrogacy Available in Pennsylvania

Can a parentage order be granted for the following?

Gestational surrogacy

YES

Altruistic surrogacy

YES

Traditional surrogacy

NO – Although traditional surrogacy isn’t prohibited in Pennsylvania, Intended Parent(s) can’t get a parentage order for traditional surrogacy arrangements. Moreover, many attorneys and agencies advise against it due to the increased legal risks involved because a surrogate legally can’t be forced to give up her parental rights. Additionally, traditional surrogacy can’t be compensated.

Parentage

Who can be declared as the parent(s) of a child from a surrogate via a court parentage order?

– Both Intended Parent(s) can be named on the parentage order.

– Only a genetic Intended Parent can be named on the parentage order. A non-genetic Intended Parent will need to establish parentage via a second or stepparent adoption following birth.

Pennsylvania is characterized as a “surrogate friendly” state, that is to say, Pennsylvania has not enacted legislation prohibiting surrogate relationships and therefore the same are available to assist individuals, couples and same sex partners with their family building needs. In 1996, the Pennsylvania Department of Health formulated the Assisted Conception Birth Registration process which allows Intended Parents’ names to be identified on the child’s birth certificate through a Pre-Birth Order. A Pre-Birth Order is available to Intended Parents regardless of whether they have a genetic connection to the child, and it is not necessary for Intended Parents to adopt the child.

How are Intended Parent(s) Listed on the Birth Certificate?

Intended Parent(s) may be listed as Father-Mother, Mother-Parent, Father-Parent, or Mother or Father.

Rights of Egg or Sperm Donor(s)

According to Ferguson v. McKiernan, 940 A.2d1236, anonymous sperm donors for assisted reproduction procedures have no parental rights over the donated gametes or a resulting child. There is no corresponding statute or case law addressing egg or embryo donation. However, sperm donors who become involved in the child’s life may be liable for support (Shultz-Jacob v. Jacob 2007 PA Super 118).

Surrogacy Steps in Pennsylvania

Surrogacy Process in Pennsylvania

Select your agency if applicable

Match with a gestational carrier

Complete medical and psychological evaluations at the fertility center

Select attorneys for the intended parents and gestational carrier and complete the gestational carrier agreement

Begin IVF cycle with surrogate

Pre-birth order

Proceedings begin after the first trimester.

Delivery and birth certificate finalization

Birth Certificate Timeline

Birth certificate

3-10 days with a pre-birth order if expedited, but 2-6 weeks otherwise.

Legal and medical steps involved in the surrogacy process may differ from case to case. Please speak with your agency and attorneys about how the process might look for you.

Court Process

Surrogacy Contracts

Surrogacy contracts in Pennsylvania are recognized and enforced by the Courts.

Independent Counsel

Independent counsel is recommended, but not required, for all parties involved in a surrogacy agreement. If independent counsel is not engaged, there may be a substantial risk of litigation.

Requirements for Surrogates and Intended Parent(s)

Pennsylvania has no statutory requirements that must be met for surrogates and Intended Parent(s) to participate in a surrogacy agreement. However, agencies and fertility clinics have their own requirements based on the American Society for Reproductive Medicine, the American Medical Association, and the American Academy of Adoption and Assisted Reproduction Attorneys.

Birth Orders

Do courts issue pre-birth orders?

YES

Do courts issue post-birth orders?

YES

Are hearings required to obtain either pre- or post-birth orders?

VARIES

Most counties in Pennsylvania don’t require hearings to receive a parentage order, but some may depending on the county. Most counties don’t require attendance, but if the Intended Parent(s) or the surrogate are from out of state, judges may allow remote appearances by the parties.

Bases of Venue

What are the bases of venue?

County where child is born; county where Intended Parent(s) live; county where Gestational Carrier lives.

Do rulings vary by venue?

Can you file a motion to waive venue?

VARIES

International Issues

International Intended Parent(s) may find doing surrogacy in Pennsylvania a relatively easy process. International Intended Parent(s) will have additional legal steps to complete before their return home regarding their country’s immigration and citizen laws that impact the child. It’s imperative the international Intended Parent(s) speak with an experienced attorney in their home country about their situation. The law of more than one country will need to be considered if the Intended Parent(s) are citizens or residents of more than one country.

Residency Requirements

Does the state impose residency requirements on either the surrogate or Intended Parent(s):

Birth Certificates

Can an international same-sex male couple receive an initial birth certificate naming the biological father and Gestational Carrier?

YES

Can an international same-sex male couple obtain an initial birth certificate naming only the biological father?

YES

Can they receive a subsequent birth certificate naming only the Intended Parent(s) with no mention of the Gestational Carrier?

YES

Passport Timeline

6-8 weeks after submitting birth certificate.

Passports can be expedited for a 2-3 week delivery with an extra fee. Intended Parent(s) can also visit a regional passport agency to receive one within 1-2 business days.

Passports are regulated at the federal level in the United States. To learn more about the process of receiving a US passport, visit Travel.State.gov.

Consulting Attorneys

Dominic Farole
Farole Law
610-502-2720

dominic@farolelawoffice.com

Assisted with 2024 updates

Stuart Sacks
Smigel, Anderson & Sacks
4431 North Front Street
Harrisburg, PA 17110
(717) 234-2401
ssacks@sasllp.com
www.sasllp.com

Legal Disclaimer

The content contained in this website is provided for informational purposes only. Content contained herein may or may not reflect the most current legal information on the subject; accordingly, this website is not promised to be correct or complete at any given time. Outcomes referenced should not be interpreted as an indication of future outcomes. Love & Kindness Surrogacy explicitly disclaims all liability for actions taken or not taken based on the contents of this website.

This website does not constitute a replacement for legal advice or counsel. Always consult an attorney before beginning the surrogacy process.

Last updated March 2024