Despite a lack of statutory guidance, Pennsylvania is considered to be a state favorable towards the rapidly growing trends in gestational surrogacy involving assisted reproduction, surrogacy generally, and the contractual nature of the surrogacy relationship.
Surrogacy most commonly refers to the gestation of a child by a woman who does intend to be the child’s legal mother (“the carrier”), but instead carries the child for another for the child’s intended parents. There are two types of surrogacy: traditional and gestational. In traditional surrogacy, the carrier is also the biological mother who has become pregnant via artificial insemination of the intended father’s sperm. In gestational surrogacy, the carrier’s own eggs are not used, but rather she is impregnated via in vitro fertilization using the genetic materials of both intended parents.
Surrogacy relationships can be established via a contract between the carrier and the intended parents. Recently, the Pennsylvania Superior Court has affirmed such agreements as valid and enforceable legal contracts, which are not void against public policy. The Pennsylvania Courts treat gestational surrogacy cases involving opposite-sex intended parents equally as with same-sex cases.
The Pennsylvania Department of Health set forth the policy and procedures for the registration of an assisted conception birth, making it possible for the intended parents and the gestational carrier to obtain a birth certificate reflecting the intended parents as the legal parents without having to go through adoption procedure.