On September 24, 2024, Mary Cushing Doherty presented at the AAML Penn Seminar Series today along with Michael Bertin, and Helen Casale, Nesta Johnson, and Rebecca Levin Nyack. The virtual presentation reviewed the Uniform Parentage Act (HB 350) and it's implications for family law attorneys in Pennsylvania.
Mary chaired the Domestic Relations Advisory Committee’s sub-committee on the UPA.
Below are Mary's Observations about House Bill 350 Pennsylvania's Proposed Uniform Parentage Act.
UNIFORM PARENTAGE ACT – PA HB 243-2019
Doherty report on issues regarding Surrogacy & Assisted Reproduction
Submitted September 30, 2019
Overview Chapter 97: Assisted Reproduction
Chapter 98: Surrogacy Agreement
Chapter 96 : Proceedings to Adjudicate Parentage §9612-9818; 9620(d) & (e);
9623(a) & (b)
Introduction
• Chapter 98 addresses child(ren) born pursuant to a Surrogacy Agreement (SA)
• Chapter 97 Assisted Reproduction (AR) addresses births not per an Agreement as
specifically provided in Chapter 98
• Section 9612 etc. (under Chapter 96) addresses adjudication of parentage of child born
due to assisted reproduction (Chapter 97)
Definitions (§9102)
“Donor” provides gametes (sperm/egg) for assisted reproduction but excludes (1) a
woman giving birth by AR unless there is a SA; and excludes (2) a “parent” as determined in
Chapter 97 (AR) or Chapter 98 (SA)
PROBLEM: This definition of a donor is complicated and circular.
“Woman” a female individual of any age
PROBLEM: Refers to as woman giving birth without differentiating between
donor womb and biological mother.
“Parent” someone who has established a parent-child relationship per 9201
included parent under Chapter 96 Adjudication
PROBLEM: Does this mean not a parent per AR/SA until Chapter 96
adjudication, however can be a parent under AR (Chapter 97) or
SA (Chapter 98) without Adjudication? Is the cart before the
horse? Under 9204 presumed a parent if a SA (Chapter 98).
Adjudication of Parentage (Chapter 96)
Section 9612 Adjudicating parentage of child of Assisted Reproduction (AR) is based on
(a) a claim by a “parent”; (Note the PROBLEM with definition of parent may require
Adjudication. Can Preliminary Objections be filed saying petitioner cannot claim to be a
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parent?); or based on a claim by a woman who gave birth (Note the PROBLEM for failing to
differentiate between the woman who provides “donor” egg or only serves as carrier womb.)
Section 9612(b) addresses multiple claims by individuals other than birth mother. (Note
the PROBLEM no definition of “birth mother”. Is it her womb or her egg and womb? Also if
birth mother is one of the individuals claiming parentage, unclear how her rights are addressed.)
Section 9613 addresses competing claims of parentage, using a new definition of “best
interests”, genetic testing and acknowledges a child can have more than 2 parents. (Note the
PROBLEM of parentage law that will overlap or conflict with custody law as well as probate
and estate law.)
Section 9615 allows the proceeding may be combined with estate administration, custody
(visitation, support, divorce, annulment) adoption and termination of parental rights. (Note the
PROBLEM with overlapping legal principles, not to mention different jurisdiction, judges and
courts.)
Section 9618 a child is a proper party but not a necessary party; and will be represented
by an attorney, guardian ad litem or similar person to represent a child if a court finds the child’s
interests are not adequately represented. (Note the PROBLEM – counsel for child is an
advocate; a GAL is not. How can a child ever have her/his interests adequately represented
without counsel? The statute cannot intertwine the role of attorney vs. GAL.)
Section 9623 when a court (a) determines parentage whether voluntary or adjudicated, (b)
the child is not bound unless (1)/(2) genetics, (3) AR or SA, or (4) the child was a party. (Note
see the PROBLEM if child has no attorney. Why “or”, isn’t “and” better? What is meant that
child is to bound by the outcome?)
Assisted Reproduction AR (Chapter 97)
Section 9701 states only applies if no Surrogacy Agreement (SA). (Note the PROBLEM
if need to establish a valid SA and if failed to prove SA, revert to AR analysis.)
Section 9702 Parental statute of donor is the donor is not a parent of child conceived by
AR. (Note the PROBLEM, without a SA a donor of sperm thought he was not a parent yet
found to be a support obligor.)
Section 9703 Parentage of AR child is the individual who consents to AR “by a woman”
with the intention to be a parent. (Note the PROBLEM if the woman giving birth also intends
to be a parent? The woman could have a Donor egg or embryo.)
Section 9704 requires a consent such as (a) a record signed by intended parent and carrier
woman. (Note the PROBLEM with “woman” not sufficiently clarified if donor womb; donor
egg, etc.) However (b) no record is required if court otherwise determines (1) express
agreement, or (2) the woman and individual are together two years and treats child as own.
(Note the PROBLEM) that the individual can walk after 23 months of treating child as his/her
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own. How does this address the child’s best interests? Note the conflict with other public
policy.)
Section 9705 Limitation on spouse’s dispute of parentage poses the situation when a
woman serves as carrier for AR and is married. Requires spouse to file suit within two years, or
later if spouse proves no genetic contribution, not cohabitation when a woman got pregnant and
never held out child as “his” / “hers”. (Note the PROBLEM of burden on spouse of “woman
who gave birth. And inversely the spouse could be found to be a parent if all SA requirements
are not met.)
Section 9707 Withdrawal of Consent happens if notice is given in a record before
“transfer” to the woman who agreed to give birth as well as the clinic or health care provider.
Failure to notify clinic/provider does not affect determination of parentage. (Note the
PROBLEM – why is notice to clinic/provider required but does not affect parentage?)
Section 9708 parental status of deceased individual allows parentage allowed by SA can
occur even if “transfer” is 36 months after death (or baby born 45 months after death). (Note
PROBLEM of conflict with estate/probate law and child born 45 months after death!)
Surrogacy Agreement (SA) (Chapter 98)
Section 9801 defines genetic surrogate uses her gamete (egg) but is not an intended
parent; while gestational surrogate does not use her egg or embryo with her egg and is not an
intended parent. In every Surrogacy Agreement (SA) the woman agrees to become pregnant not
as an intended parent.
Section 9802 requires (a) surrogate to be 21, previously gave birth, completed a medical
evaluation & mental health consultation and have an independent attorney. (Note the
PROBLEM, who gets the medical and mental health reports?) And the Section requires (b)
intended parents to meet same requirements. (Note the PROBLEM if carrier mother ought to
know that both parents consent and the emotional health of intended parents; reports to be filed
with court.)
Section 9803 Requirements set rules (1) requires PA law applies if one party is a resident
or the following occurs in PA: the medical evaluation, the mental health consult or the
procedure. (Note the PROBLEM if the connection is fleeting and other states may have
jurisdiction.) Under (2) all meet 9802 eligibility. Under (3) intended parents, surrogate and
spouse is a party. Under (4) need a record; (5) copy given to surrogate & intended parents; (6)
notarized record; (7) attorney representation of all and (8) parents pay for surrogate attorney and
(9) all exams - medical & mental – are before “procedure”. (Note the PROBLEM of surrogate
spouse signs, but gets no copy. The discharge of lawyer/failure to pay voids SA and creates
havoc.)
Section 9804 about SA content, waiver of parentage by surrogate & spouse; obligations
of intended parents are joint and several, monetary obligations, health care coverage, etc. Under
(7) the agreement must permit surrogate to make all health and welfare decisions regarding
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herself, her pregnancy and right to terminate pregnancy. (Note many view this as a PROBLEM
not to ask surrogate to follow health precautions.)
Section 9805 addresses effect of marital status: (a) marriage/divorce of surrogate; (b)
intended parents who marry after SA and divorce of an intended parent. (Note the PROBLEM
if an intended parent engages, the expecting spouse is not consenting, not an intended parent, and
yet child born during marriage.)
Section 9806 limits the inspection of documents filed. (Note the PROBLEM this does
not say medical/mental health records are on file.)
Section 9807 gives the court exclusive jurisdiction over the SA but does not give the
court custody or support jurisdiction if not otherwise allowed by law. (Note the PROBLEM of
alternate jurisdictions.)