PENNSYLVANIA ASSISTED REPRODUCTION LAWS

Egg and Sperm Donors

     Traditionally, an individual or couple in need of donated eggs (ovums)and sperm utilize the services of a medical clinic that has procured the eggs and sperm from an individual who wishes to keep their identity a secret from the recipients. The egg and sperm donors may or may not have been paid by the clinic for their "donation". Almost always, the recipients are charged a fee for receiving the donated eggs and sperm as part of the overall fees of the in-vitro fertilization ((IVF) process. As of this date, there has never been a reported case from Pennsylvania wherein the recipients of the donated eggs or sperm from an anonymous donor have attempted to sue the egg or sperm donor for child support or other obligations.

     In other circumstances, a friend or family member may agree to be an egg or sperm donor. The fact that the identity of the donor is known can create an entirely different legal obligation of the donor. The Pennsylvania appellate courts have ruled that a friend who donated his sperm to a female friend who was successful in giving birth to a child was obligated to pay child support despite the fact that the woman agreed in writing that the male donor would have no rights to custody and no obligation of support to the child. The court indicated that the fact that the sperm donor's identity was known to the mother created a different analysis than donors from a clinic whose identities are hidden. In this fact pattern, it is conceivable that the sperm donor would be successful in seeking custody rights of the minor child since the donor would have support obligations.

      It appears that the rights and obligations of the donors in these two situations varied perhaps based upon the fact that in the second situation, the minor child was not adopted by an adoptive father. For this reason, it seems that an egg donor, even one whose identity is known, has little risk of any legal obligations provided that a legal contract is entered into beforehand and adoption of the minor child is completed by the parties.

Surrogacy Defined

     Surrogacy is the process whereby a woman agrees to become pregnant for the purpose of gestating and giving birth to a child she will not raise. The woman is called the surrogate mother or gestational carrier. In many situations the woman is carrying the child for a party with whom she has entered into a surrogacy contract. The person(s), known as the intended parent(s), is the individual or couple who intends to raise the child after its birth. Surrogacy is particularly popular with infertile couples and same sex (gay or lesbian) couples. However, there are countless reasons an individual or a couple may chose to utilize the surrogacy process.

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 process of IVF, 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.

Legal Services

     Having a formal contract regarding sperm or ovum donations or surrogacy filed with the court is not a requirement in Pennsylvania; parties are permitted to make private agreements. Many times these agreements are known as egg and sperm donation contracts or surrogacy contracts. These agreements are necessary in order to define the expectations, rights, and responsibilities of the donors, genetic parents, gestational carrier, and intended parents.

     Our experienced Pennsylvania assisted reproduction lawyers address pre-conception and pre-birth issues in our contracts. For example, a surrogacy contract will define what parties are included in the agreement so this does not become an issue that must be addressed in the future. The agreement may include, the infertile or same sex couple, the surrogate mother, the surrogate's significant other, the donor, and/or the donor's significant other. Other pre-conception issues may include the rights of the parties regarding custody and control of the embryos or sperms, the parties' expectations regarding future contacts, the course of medical treatment, what party will be responsible for medical expenses, and who will be liable if complications arise.

     In addition, our assisted reproduction attorneys' draft surrogacy contracts to address the complex legal issues that may arise post birth. Some examples of these issues include: postpartum care for the donor or surrogate, where the birth will take place, who will name the child, the right of either party to medical information in the future, the rights of the child regarding knowledge of biological siblings or extended family, and the legal status of the child.

     These issues, as well as expectations regarding confidentiality and compensation, are best addressed by assisted reproduction lawyers who can draft the legal documents necessary to protect all parties.

Interested in becoming a parent through surrogacy or donation? Interested in becoming a surrogate, carrier, or donor?

     Our Pennsylvania assisted reproduction attorneys help individuals and couples, including same sex couples, interested in becoming parents, surrogates, or donors. The first step you should take in your quest to become a parent, surrogate, or donor, is to call our office at (412) 281-9906 or toll free at (866) PA-DIVORCE or click here to schedule an appointment.

Pa Superior Court Cases Involving Surrogacy:

J.F. v DB.

941 A. 2d 718, 2008 PA Super 2: A couple contacted a private surrogacy agency after they learned that they could not conceive any additional children. The parties entered into a surrogacy contract which named the gestational carrier. Pursuant to this agreement, three of egg donor's eggs were fertilized in vitro with the intended father's sperm and were implanted into the gestational carrier. Within four weeks, the parties learned that the gestational carrier was pregnant with triplets. The gestational carrier decided to take the children home with her from the hospital without the consent of the intended parents. A custody battle ensued and the trial court ordered the intended parents to pay child support to the gestational carrier. The Superior Court held that the gestational carrier had not established that she had not established in loco parentis status because the intended parents had not agreed to allow her to assume custody of the children. The Superior Court held that the gestational carrier had standing to seek child support even if she was caring for the children against the parents' wishes. The Court further held that the intended parents were fulfilling a financial obligation to the triplets that would have existed even if the gestational mother had never been awarded support.