Surrogacy is legal in many states. Some, like California, directly enforce gestational carrier contracts. Others, like Texas, Illinois, and Virginia, enforce only those contracts that are entered into by a married couple who need a surrogate for medical reasons which a judge approves before embryo transfer occurs. A Pennsylvania court has now shown why gestational surrogacy contract should be directly enforced in the absence of legislation. Its well-reasoned opinion suggests that more states may be open to this approach to surrogacy.
The Pennsylvania case, In re Baby S., arose out of a gestational surrogacy agreement involving embryos created with donor eggs and the sperm of the husband of the intended parents. The written agreement was indisputably clear that that the intended parents would be the legal rearing parents, their names would appear on the birth certificate, and the carrier would have no rearing rights or duties. Unlike previous cases questioning the validity of a surrogacy contract, the challenge here came not from the carrier who now wished to assert rearing rights (see In re Baby M. and Calvert v. Johnson) but from the wife (the intended rearing mother). She had praised the carrier’s willingness to help her have a child, which she repeated both at the embryo transfer and at 20 weeks of pregnancy, when both intended parents attended an ultrasound. A month later she informed the parties that “irreconcilable marital difficulties” would make it difficult for her to co-parent the child with the intended father. She also refused to complete the paperwork for her name to appear on the birth certificate as the mother.
The carrier, while still pregnant, filed a petition seeking a declaration that both intended parents were the legal parents of Baby S. and directing that their names be entered on the birth certificate. The matter was heard by a judge after Baby S. was born and the carrier’s name was listed as the sole parent on the birth certificate. At that point the intended father was parenting the child with medical assistance from the state of California, where he had moved. The trial judge ruled in favor of the carrier’s petition that the intended parents be declared the legal rearing parents and the birth certificate corrected. The intended mother appealed unsuccessfully to the Superior Court claiming that a surrogacy agreement was not enforceable because it was “against public policy.”
In rejecting this argument the Superior Court recognized several factors that would make it hard for courts in similar situations to rule otherwise. First, the Pennsylvania Supreme Court had held that “. . . only when a given policy is so obviously for or against the public health, safety, morals, or welfare that there is virtual unanimity of opinion in regard to it, that a court may constitute itself the voice of the community in declaring “that a contract is against public policy.” Indeed, that court had rejected such a challenge to a sperm donation agreement in which the donor had given up all rearing rights and duties in the offspring which the mother had after birth sought to invalidate. It found that “the absence of a legislative mandate coupled to the constantly evolving science of reproductive technology . . . illustrate the very opposite of unanimity with regard to the legal relationships arising from sperm donation,” a reference to Ferguson v. McKiernan. In addition, a long-established Department of Health procedure for entering the names of intended parents on birth certificates when a gestational carrier is used is further evidence of an acceptance, in the absence of contrary legislation, of assisted reproductive procedures. Finally, the child in question would not have been born but for the contract which had accorded the intended parents full legal parentage.
In re Baby S. is a clear signal that gestational surrogacy is nearing full acceptance as a valid legal technique for forming a family without explicit legislative approval. Alternative reproductive techniques, including IVF, donor egg and sperm, and gestational surrogacy, are now widely practiced and accepted. Since the rush of restrictive legislation after Baby M in 1987, no state has added restrictions and those acting, such as Texas and Illinois, have created frameworks for enforcing gestational contracts.
Baby S. shows that even when legislatures have not addressed the issue, courts are percipient enough to see the important role that contracts for gamete donation and surrogacy play in contemporary reproduction and family formation. Legislatures may find it desirable to regulate such procedures. But if they do not, existing legal doctrines will serve parties well in planning their families and resolving later disputes.
John A. Robertson, a Hastings Center Fellow, holds the Vinson and Elkins Chair at The University of Texas School of Law at Austin. A version of this essay originally appeared on Bill of Health, a blog by the Petrie-Flom Center and friends.