PRINTER'S NO. 2371
No. 1843 Session of 1989
INTRODUCED BY REBER, TRELLO, LASHINGER, HECKLER, ROBINSON,
FARGO, FOX, MAIALE, NAHILL, HOWLETT AND E. Z. TAYLOR,
SEPTEMBER 18, 1989
REFERRED TO COMMITTEE ON JUDICIARY, SEPTEMBER 18, 1989
AN ACT
1 Amending Title 23 (Domestic Relations) of the Pennsylvania
2 Consolidated Statutes, establishing the Surrogacy Act; and
3 providing for surrogacy agreements and their enforcement.
4 Medical knowledge and technology, combined with the lack of
5 infants readily available for adoption, have created an
6 increasing demand for surrogacy. The purposes of this act are
7 to:
8 (1) Facilitate the creation of a parent/child bond.
9 (2) Facilitate private reproductive choices by
10 effectuating the parties' intentions while minimizing the
11 risks to the parties.
12 (3) Facilitate informed and voluntary decisionmaking.
13 (4) Define and delineate the rights and responsibilities
14 of the intended parent or parents, the providers of genetic
15 materials, the surrogate, and her husband, if any.
16 TABLE OF CONTENTS
17 TITLE 23
18 DOMESTIC RELATIONS
1 PART IV. SURROGACY
2 Chapter 35. Surrogacy and Surrogacy Agreements
3 § 3501. Definitions.
4 § 3502. Legality of surrogacy agreement.
5 § 3503. Required examinations and health care provider
6 responsibilities.
7 § 3504. Content of surrogacy agreement and disclosure of
8 court records.
9 § 3505. Remedies in the event of breach.
10 § 3506. Venue.
11 § 3507. Commencing an action for certification of parentage.
12 § 3508. Hearing on the petition.
13 § 3509. Responsibilities of health facility or licensed
14 person delivering child.
15 § 3510. Tissue-typing or blood-typing.
16 § 3511. Certification of parentage.
17 § 3512. Birth certificates.
18 § 3513. Voluntary exchange of information.
19 § 3514. Sealed records.
20 § 3515. Licensed agency.
21 § 3516. Legal representation.
22 § 3517. Denial of application and award of custody.
23 The General Assembly of the Commonwealth of Pennsylvania
24 hereby enacts as follows:
25 Section 1. Title 23 of the Pennsylvania Consolidated
26 Statutes is amended by adding a part to read:
27 PART IV
28 SURROGACY
29 Chapter
30 35. Surrogacy and Surrogacy Agreements
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1 CHAPTER 35
2 SURROGACY AND SURROGACY AGREEMENTS
3 Sec.
4 3501. Definitions.
5 3502. Legality of surrogacy agreement.
6 3503. Required examinations and health care provider
7 responsibilities.
8 3504. Content of surrogacy agreement and disclosure of court
9 records.
10 3505. Remedies in the event of breach.
11 3506. Venue.
12 3507. Commencing an action for certification of parentage.
13 3508. Hearing on the petition.
14 3509. Responsibilities of health facility or licensed
15 person delivering child.
16 3510. Tissue-typing or blood-typing.
17 3511. Certification of parentage.
18 3512. Birth certificates.
19 3513. Voluntary exchange of information.
20 3514. Sealed records.
21 3515. Licensed agency.
22 3516. Legal representation.
23 3517. Denial of application and award of custody.
24 § 3501. Definitions.
25 Subject to additional definitions contained in subsequent
26 provisions of this part which are applicable to specific
27 provisions of this part, the following words and phrases when
28 used in this part shall have the meanings given to them in this
29 section unless the context clearly indicates otherwise:
30 "Agreement" or "surrogacy agreement." An agreement which
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1 meets the requirements of section 3504 (relating to content of
2 surrogacy agreement and disclosure of court records).
3 "Genetic materials." The sperm, ovum and embryo.
4 "Intended parent." The individual or individuals who enter
5 into a surrogacy agreement with a surrogate with the intent to
6 become the legal parent or parents of the child born to the
7 surrogate.
8 "Licensed agency or facility." A facility which meets the
9 requirements of section 3515 (relating to licensed agency).
10 "Parties." The intended parent or parents, the surrogate and
11 the surrogate's husband, if any.
12 "Providers of genetic materials." The persons who, pursuant
13 to the terms of the agreement, provide the sperm and ovum from
14 their bodies which are planned to be used ultimately to create
15 the child.
16 "Related." A surrogate is related to the intended parents if
17 the child born of the surrogacy agreement and the surrogate
18 would stand in relation to each other as grandchild and
19 grandparent, as niece or nephew and aunt or uncle or as
20 siblings.
21 "Surrogate." The gestational carrier of an embryo, fetus or
22 child.
23 § 3502. Legality of surrogacy agreement.
24 (a) Minors.--A minor may not be a party to a surrogacy
25 agreement.
26 (b) Parties to be fully informed.--Prior to entering into
27 any surrogacy agreement, all parties must be fully informed. To
28 be fully informed, parties must be: apprised of their rights and
29 liabilities under the agreement by legal counsel, apprised of
30 the medical risks involved by a licensed physician, apprised of
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1 psychological risks by a licensed registered mental health
2 practitioner and apprised that the surrogate has a previous
3 history of childbirth.
4 (c) Agreements without payment.--An agreement for surrogacy
5 shall be valid as a matter of public policy if it contains no
6 provisions for the payment of a fee to the surrogate and:
7 (1) the surrogate is related to the intended parents; or
8 (2) the surrogate and the intended parents have known
9 each other for a period of at least three years before the
10 agreement is signed.
11 (d) Agreements with payment.--(Reserved).
12 § 3503. Required examinations and health care provider
13 responsibilities.
14 (a) Physician's responsibilities and required examination.--
15 (1) (i) Not more than one year before the insemination,
16 a physician or physicians licensed in this Commonwealth
17 must examine or have tests performed on the surrogate and
18 the providers of genetic materials to determine to a
19 reasonable degree of medical certainty:
20 (A) the examined or tested person's general
21 physical health, fertility and Rh factor;
22 (B) whether the person has any sexually
23 transmitted diseases;
24 (C) the person's mental health and whether there
25 is any significant mental disease in the person's
26 history that is likely to be inherited by a child
27 born of the prospective surrogate.
28 (ii) The examination shall include all tests and
29 examinations recommended by the American Fertility
30 Society.
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1 (iii) In arriving at an opinion regarding whether
2 the person has a mental disease that will be inherited by
3 a child born of the prospective surrogate, a physician
4 may rely on test results performed by a person with a
5 doctorate in clinical psychology who is certified or
6 licensed in this Commonwealth.
7 (2) The physician or physicians shall summarize, in
8 writing, the results of each test or examination made
9 pursuant to this subsection. All summaries shall be attached
10 to the surrogacy agreement. Any physician who has provided a
11 written summary for the purposes of inclusion in a surrogacy
12 agreement shall be required to disclose promptly to the
13 agency, in writing, any relevant changes discovered
14 subsequently by the physician. The doctor-patient privilege
15 shall not apply to any such discovery.
16 (3) No physician or other person shall cause a surrogate
17 to be artificially inseminated with any of the following
18 prohibited combinations of genetic materials:
19 (i) The combination of sperm and ovum from an
20 ancestor and a descendant or a brother and a sister,
21 whether the relationship is by half-blood or whole-blood.
22 (ii) The combination of sperm and ovum of an uncle
23 and a niece or an aunt and a nephew, whether the
24 relationship is by half-blood or whole-blood.
25 (iii) The combination of sperm and ovum of cousins
26 of the first degree.
27 (b) Required examination by licensed or registered mental
28 health practitioner.--
29 (1) Not more than 18 months before the insemination, the
30 surrogate shall be examined by a psychiatrist or
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1 pyschologist. If a psychiatrist's services are employed, he
2 shall be a physician licensed in this Commonwealth and board-
3 certified in psychiatry. If a psychologist is employed, he
4 shall have a doctorate in clinical psychology and be licensed
5 in this Commonwealth. The psychiatrist or psychologist shall
6 examine the surrogate to determine whether, to a reasonable
7 degree of psychiatric or psychological certainty, the
8 surrogate:
9 (i) Has any psychosis or mental disability that
10 would prevent her from understanding and fulfilling her
11 responsibilities under a surrogacy agreement.
12 (ii) Is mentally and emotionally capable of entering
13 into a surrogacy agreement.
14 (2) The psychiatrist or psychologist shall summarize the
15 results of any test or examination made pursuant to this
16 subsection in writing. All summaries shall be attached to the
17 surrogacy agreement. Any psychiatrist or psychologist who has
18 provided a written summary for the purposes of inclusion in a
19 surrogacy agreement shall be required to disclose promptly to
20 the intermediary agency in writing any relevant changes
21 discovered subsequently by the psychiatrist or psychologist.
22 The mental health care provider-patient privilege shall not
23 apply to any such discovery.
24 (c) Required examinations by social workers and
25 counseling.--
26 (1) Not more than one year before the insemination, the
27 surrogate shall be examined by a social worker certified or
28 registered in this Commonwealth who shall obtain a complete
29 social history of the prospective surrogate and determine
30 whether the prospective surrogate appears to be suited to be
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1 a surrogate.
2 (2) Not more than one year before the insemination, the
3 intended parents shall be examined by a certified or
4 registered social worker who shall obtain a complete social
5 history of the intended parents and determine whether the
6 intended parents appear to be suited to go through the
7 process of having a child through surrogacy and raising a
8 child born of a surrogacy agreement.
9 (3) The social worker or workers shall state in writing
10 their recommendation regarding the person or persons they
11 have examined. The social worker or workers shall indicate
12 whether the prospective surrogate appears to be suited to be
13 a surrogate and whether the intended parents appear to be
14 suited to the process of having a child through surrogacy and
15 raising a child born of a surrogacy agreement. All
16 recommendations shall be attached to the surrogacy agreement.
17 Any social worker who has provided a written summary for the
18 purposes of inclusion in a surrogacy agreement shall be
19 required to disclose promptly to the intermediary agency, in
20 writing, any relevant changes discovered subsequently by the
21 social worker. No privilege shall apply to any such
22 discovery.
23 (4) If the surrogate's attorney, the intended parents'
24 attorney or the intermediary agency requests, the licensed
25 social worker shall counsel the parties as deemed necessary
26 by the social worker.
27 (d) Attachments made part of the agreement and part of
28 petition.--All attachments to the surrogacy agreement shall be
29 part of the agreement for all purposes.
30 § 3504. Content of surrogacy agreement and disclosure of court
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1 records.
2 The surrogacy agreement shall be in writing and signed by the
3 parties and shall:
4 (1) State that the surrogate and her husband, if any,
5 agree that they have no parental or custodial rights or
6 obligations with respect to any child conceived pursuant to
7 the terms of the surrogacy agreement, and that full and
8 immediate physical custody of the child shall be with the
9 intended parents upon birth.
10 (2) State that, before the surrogacy agreement was
11 signed, the proposed providers of genetic materials and the
12 surrogate were examined by a licensed physician for the Rh
13 factor compatibility and sexually transmitted diseases as
14 required by section 3503 (relating to required examinations
15 and health care provider responsibilities).
16 (3) State that the intended parents shall pay the
17 medical expenses arising out of the performance of the
18 surrogacy agreement for the surrogate's services during
19 insemination, pregnancy and a post-partum period, but that
20 the obligation for such post-partum expenses shall be limited
21 to expenses incurred in the six months following delivery of
22 the child, or fetus, or involuntary termination of pregnancy.
23 (4) Provide for:
24 (i) Term life insurance for the period from
25 insemination through the sixth months after the birth of
26 the child with minimum death benefits of $100,000 on the
27 life of the surrogate and with beneficiaries as the
28 surrogate selects. If the condition of health of the
29 surrogate makes the premiums for such a policy
30 extraordinarily expensive, the amount of death benefits
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1 may be reduced so that the premium would be approximately
2 what would be paid for $100,000 of death benefits for a
3 healthy person of the same age as the surrogate and
4 otherwise similar to the surrogate.
5 (ii) Term life insurance for the period from
6 insemination through certification of parentage in a
7 minimum amount of $100,000 on the life or lives of the
8 intended parent or parents with the child, or a trust for
9 the sole benefit of the child, as beneficiary.
10 (iii) Adequate health insurance for the surrogate,
11 with at least 80% coverage of the expenses listed in
12 paragraph (3). The health insurance may have exclusions
13 for preexisting health conditions of the surrogate.
14 Coverage through a health maintenance organization shall
15 qualify as adequate health insurance.
16 (5) State that, upon execution of the surrogacy
17 agreement and before the surrogate is inseminated, all known
18 and estimated expenses shall be placed in a trust fund to
19 assure their payment.
20 (6) State that the intended parent or parents shall take
21 custody of and parental responsibility for any child
22 conceived pursuant to the terms of the surrogacy agreement,
23 regardless of the child's or children's health, regardless of
24 mental condition or defect, and regardless of whether the
25 child is born alive or is stillborn.
26 (7) Recite that before signing the surrogacy agreement:
27 (i) The surrogate and the providers of genetic
28 materials have previously authorized the release of a
29 summary of their medical records, or, if a summary is not
30 available, the whole record, to the intended parent or
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1 parents; except that no such recitation need be made by
2 an intended provider of genetic materials who is also an
3 intended parent.
4 (ii) The records described in subparagraph (i) have
5 been released and that the surrogate and the intended
6 parent or parents have received the released records.
7 (iii) The surrogate and her husband, if any, have
8 been informed of and consented to any known and
9 anticipated medical and psychological risks associated
10 with the performance of the surrogacy agreement, which
11 risks shall be described in writing.
12 (8) Recite that the intended parent or parents and the
13 surrogate have previously authorized the release of their
14 criminal and civil records, including arrests and convictions
15 for all offenses other than minor traffic offenses, and
16 consented to the examination of any sealed or impounded
17 records, and that the intended parent or parents and the
18 surrogate have reviewed the released information before
19 signing the surrogacy agreement or have waived such right.
20 (9) State that the intended parent or parents shall not
21 be liable for wages, child care, transportation, or any other
22 expenses of the surrogate and her husband.
23 (10) State that the surrogate shall be the sole source
24 of consent with respect to the clinical management of the
25 pregnancy, including termination of the pregnancy.
26 (11) State that the sole damages for breach and remedies
27 for nonperformance shall be as provided in section 3505
28 (relating to remedies in the event of breach).
29 (12) State that the surrogate and the providers of
30 genetic materials agree to submit themselves and the child
19890H1843B2371 - 11 -
1 for the performance of blood-typing and tissue-typing tests.
2 (13) State that the surrogate has consulted with a
3 lawyer of her choice and that the fees of the lawyer are to
4 be paid by the surrogate, or that the intended parents are to
5 pay the surrogate's attorney fees to a certain stated maximum
6 amount.
7 (14) State the intentions of the parties with respect to
8 their wish to exercise their right to know the identity of
9 the others and their choice to meet or not meet the others.
10 The parties may agree to change their intentions with respect
11 to their choice to know or not to know the identity of the
12 others and their choice to meet or not meet the others. Such
13 change must be consented to by all of the affected parties in
14 a writing signed after the surrogacy agreement and does not
15 require any consideration. There need be no mutuality of
16 agreement with respect to the knowledge of a party; for
17 example, the intended parents may agree to disclose their
18 identity without learning the identity of the surrogate and
19 vice versa. Nothing in this section shall be construed to
20 prohibit an agreement for partial disclosure of identity
21 without full disclosure.
22 (15) State that the court shall have the authority to
23 modify the approved agreement only as provided in section
24 3517 (relating to denial of application and award of
25 custody).
26 (16) State that the surrogate shall be entitled to a
27 summary of the medical records of the providers of genetic
28 materials relating to sexually transmitted diseases; and that
29 the surrogate shall also be entitled to access to any civil
30 or criminal records relating to the subject of the fitness of
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1 the intended parents as custodians of a child.
2 § 3505. Remedies in the event of breach.
3 The parties to a surrogacy agreement shall have the following
4 rights and remedies:
5 (1) If the termination of the pregnancy is the voluntary
6 act of the surrogate and not medically necessary, or if the
7 child is not genetically related to one or both of the
8 providers of genetic materials and the lack of relationship
9 is not due to physician or laboratory error, then the
10 intended parent or parents shall have a cause of action
11 against the surrogate. The action for such damages shall be
12 brought within one year after the termination of pregnancy or
13 birth and may be included in the certification of parentage
14 proceedings, or such proceedings may be brought as a breach
15 of contract action in such venue as is prescribed for breach
16 of contract actions.
17 (2) (i) If the termination of the pregnancy is
18 involuntary, medically necessary, or consented to by all
19 parties, then the surrogate shall be entitled to be paid:
20 (A) Medical expenses, if the agreement provides
21 that the intended parent or parents are to pay the
22 medical expenses during the pregnancy.
23 (B) Reasonable attorney fees and costs incurred
24 by the surrogate for enforcement of her rights.
25 (ii) The action for such damages shall be brought
26 within one year after the termination of the pregnancy
27 and may be included in the certification of parentage
28 proceedings, or such proceedings may be brought as a
29 breach of contract action in such venue as is prescribed
30 for breach of contract actions.
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1 (3) After the child is born, either of the parties shall
2 have the right to specific performance, that is, the right to
3 have the court order and enforce the delivery of custody of
4 the child to the intended parent or parents. The party who is
5 awarded specific performance shall also be awarded reasonable
6 attorney fees and reasonable costs, such costs to include,
7 not only the costs incurred in connection with the
8 litigation, but also any costs incurred in locating the
9 child. No action for specific performance against a party to
10 the agreement may be brought more than 14 days after the
11 intended parent or parents first learn of the delivery of the
12 child. An action for specific performance may be included in
13 the certification of parentage proceedings, or such
14 proceedings may be brought as an action at equity in such
15 venue as is prescribed for equity actions. If the action is
16 included in the certification of parentage proceedings, the
17 hearing on the matter shall be held within seven days of
18 notice to the other party or parties. If the action is
19 brought as an action in equity, then the return date on the
20 notice shall be in seven days and hearing on the petition
21 shall be not more than seven days after the return date on
22 the notice, unless continued by the court for good cause. The
23 rights to specific performance shall be in addition to the
24 rights at law, except as limited in paragraphs (1) and (2),
25 this paragraph, and the agreement. In proceedings for
26 specific performance, the court shall appoint an attorney for
27 the child as guardian ad litem, with the attorney fees to be
28 paid by a party, or the parties, as the court in its
29 discretion determines is equitable.
30 (4) Any person or persons, other than the surrogate, her
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1 husband, if any, the intended parent or parents (or the
2 survivor of the intended parents if the agreement provided
3 for two intended parents and one of them has died), or the
4 guardian of the child as provided for in the agreement,
5 having actual custody of the child may be joined or named as
6 party defendants and shall be served with process as in other
7 civil cases, except that the return date shall be seven days
8 after the return date on the notice, unless continued by the
9 court for good cause. No action against such a person or
10 persons for specific performance or for custody may be
11 brought more than 14 days after the intended parent or
12 parents first learn of the whereabouts of the child. The
13 party who is awarded specific performance or custody or both
14 shall be awarded reasonable attorney fees and costs, such
15 costs to include not only the costs incurred in connection
16 with the litigation, but also any expenses incurred in
17 locating the child. The rights to specific performance and
18 costs shall be in addition to the rights at law.
19 (5) Any cause of action arising from a surrogacy
20 agreement shall be limited to specific performance as
21 provided above or as otherwise provided by law.
22 (6) If both the intended parents die before they take
23 physical custody of the child, the surrogate may, within
24 three days of learning of the death of the last of the
25 intended parents to survive, exercise an option to retain the
26 child as her own. This option shall be exercised in writing,
27 personally delivered to either the executor or administrator
28 of the estate of the last surviving decedent, or a close
29 relative of such decedent, or, if such persons cannot be
30 identified and located within the three-day period, then by
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1 publishing a notice in a newspaper of general circulation in
2 the county of residence of the intended parents, or, if such
3 place of residence is not known, then in the county where the
4 child was delivered. The notice shall be published within 14
5 days of the date on which the surrogate learned of the death
6 of the last of the intended parents to survive. Such
7 published notice shall be calculated to give reasonable
8 notice to the personal representative, or relatives of the
9 last surviving decedent, of the surrogate's exercise of the
10 option to retain custody of the child as her own. In addition
11 to the publication of the notice, the surrogate shall mail
12 notice, by certified mail, return receipt requested, to the
13 attorney, if any, who represented the intended parents in
14 negotiations of the surrogacy agreement.
15 § 3506. Venue.
16 Venue shall lie in the county where any of the parties to the
17 surrogacy agreement resides, in the county where the agreement
18 was made or in the county where the licensed agency is located
19 or has an office.
20 § 3507. Commencing an action for certification of parentage.
21 (a) Petitioners.--The intended parent or parents, the
22 surrogate, and her husband, if any, shall be petitioners in an
23 action for certification of parentage.
24 (b) Petition.--
25 (1) The petition shall allege:
26 (i) The name of the intended parent or parents,
27 their ages, their address, and the genetic materials that
28 they intended to provide from their bodies.
29 (ii) Whether it was intended that the surrogate
30 provide genetic materials.
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1 (iii) Whether anyone other than the intended parent
2 or parents and the surrogate were intended to provide
3 genetic materials.
4 (iv) That the parties entered into the agreement
5 knowingly and voluntarily.
6 (v) That the surrogacy agreement complies with the
7 requirement of section 3504 (relating to content of
8 surrogacy agreement and disclosure of court records).
9 (vi) The one of the following paragraphs which is
10 true:
11 (A) The child is genetically related to the
12 persons who, pursuant to the surrogacy agreement,
13 were to be the providers of genetic materials.
14 (B) The child is genetically unrelated to the
15 persons who were to be the providers of genetic
16 materials under the surrogacy agreement, but
17 determination as to whether the lack of relationship
18 is due to laboratory error or otherwise has been
19 waived by all parties and the intended parents have
20 agreed to assume custody of and full legal
21 responsibility for the child.
22 (C) The child is genetically unrelated to the
23 persons who were to be the providers of genetic
24 materials under the surrogacy agreement and the
25 parties have not agreed to waive court determination
26 of whether the lack of relationship is due to
27 laboratory error or otherwise.
28 (vii) That the surrogate or the intended parents
29 have been fully informed of their legal rights,
30 responsibilities and consequences of entering into a
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1 surrogacy agreement by a lawyer and have accepted their
2 legal rights, responsibilities and consequences; the
3 surrogate or the intended parents have been informed of
4 all medical risks by a licensed physician and have
5 consented to all known risks; the surrogate or the
6 intended parents have been informed of the psychological
7 risks and consented to all known risks by one of the
8 following: a physician licensed in this Commonwealth and
9 board-certified in psychiatry, a person with a doctorate
10 in clinical psychology and licensed or certified in this
11 Commonwealth, or a person with a master's degree in
12 social work and licensed or certified in this
13 Commonwealth; and the surrogate has previously given
14 birth to a child.
15 (2) The following shall be attached to the petition:
16 (i) (A) Each provider of genetic materials who is
17 not an intended parent shall state in an affidavit:
18 (I) His or her name, address and age.
19 (II) The case name of all adoption cases,
20 paternity cases or parentage cases in which the
21 provider of genetic material was alleged to be
22 the parent or given notice of the action as the
23 putative mother or father.
24 (III) If male, the total number of occasions
25 he has previously provided sperm for the purpose
26 of inseminating a surrogate or a woman other than
27 his wife.
28 (IV) If female, the total number of
29 occasions she has previously provided an ovum
30 that was inseminated by a man other than her
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1 husband.
2 (B) The total number of occasions for each
3 intended provider of genetic materials shall not
4 exceed ten, unless an affidavit of the physician or
5 physicians who used those sperm or ova shall state in
6 a separate affidavit that, in the opinion of the
7 physician or physicians, to a reasonable degree of
8 medical certainty, the sperm or ova did not produce
9 more than nine children.
10 (C) The provider of genetic materials shall also
11 state that, within 14 days of receiving notice that
12 the child is being tissue-typed or blood-typed, he or
13 she agrees to submit himself or herself to tissue-
14 typing or blood-typing, including, but not limited
15 to, human leukocyte antigen testing.
16 (ii) The surrogate shall state in an affidavit her
17 name and address; the name and address of her husband, if
18 any; her age; whether she is an intended provider of
19 genetic materials under the agreement; and that she has
20 previously had a child.
21 (iii) If the intended parent or parents and the
22 surrogate and her husband, if any, have all signed the
23 same copy of the surrogacy agreement, only that copy
24 shall be attached to the petition. If, in order to
25 preserve the anonymity of the intended parent or parents,
26 the surrogate, the surrogate's husband, if any, or the
27 providers of genetic materials, the parties have not
28 signed the same copy of the surrogacy agreement, then all
29 signed copies of the agreement shall be filed. All
30 attachments to the petition, including, but not limited
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1 to, the surrogacy agreement and its attachments, are a
2 part of the petition for all purposes.
3 (3) If the parties to the agreement intend to retain
4 anonymity, the parties may use aliases for the purposes of
5 the action, but the affidavit described in paragraph (2)
6 shall set forth the true names of the parties and the
7 providers of genetic materials.
8 § 3508. Hearing on the petition.
9 (a) Hearing.--The court shall conduct a hearing on the
10 petition within one year after the child is born. If the parties
11 intend not to have their identities disclosed, the court shall
12 conduct hearings for the intended parent or parents on a day
13 other than the day on which it conducts the hearing for the
14 surrogate and her husband, if any. The court shall determine:
15 (1) Whether the parties executed the agreement knowingly
16 and voluntarily.
17 (2) Whether the agreement complies with the provisions
18 of section 3504 (relating to content of surrogacy agreement
19 and disclosure of court records) and meets the requirements
20 for a surrogacy agreement.
21 (3) Whether all the requisite petitions have been filed
22 and whether they contain the requisite allegations.
23 (b) Order.--If the court finds affirmatively on all points,
24 it shall enter an order:
25 (1) Declaring the agreement to be valid.
26 (2) Ordering that the intended parent or parents shall
27 retain or assume custody of and full legal responsibility for
28 the child.
29 (3) Determining whether the child is genetically related
30 to the persons who, pursuant to the surrogacy agreement, were
19890H1843B2371 - 20 -
1 to be the providers of genetic materials or whether such
2 determination has been waived, and certifying the child or
3 awarding custody of the child to the surrogate as provided in
4 section 3511 (relating to certification of parentage).
5 § 3509. Responsibilities of health facility or licensed person
6 delivering child.
7 (a) Copy of agreement.--Any health facility or person
8 licensed to deliver children from pregnant women in this
9 Commonwealth shall, upon the request of the surrogate or an
10 intended parent, maintain in its, his or her records a copy of a
11 surrogacy agreement and shall act in accordance with that
12 agreement. Hospitals and persons licensed to deliver children
13 from pregnant women in this Commonwealth shall presume that an
14 agreement bearing the names and business addresses of the lawyer
15 representing the surrogate and the lawyer representing the
16 intended parents is valid and requires them to treat it as
17 valid.
18 (b) Report.--Upon release of a child to the intended parent
19 or parents, the health facility or person licensed to deliver
20 children from pregnant women shall report the release to the
21 Department of Health.
22 (1) The report shall be on forms supplied by the
23 Department of Health and shall be transmitted to the
24 department within 48 hours from the release of the child from
25 the health facility or, if the child is not born in a health
26 facility, within 72 hours from the birth of the child.
27 (2) In completing the report, the health facility or
28 person licensed to deliver children from pregnant women shall
29 not disclose the identity of the surrogate to the intended
30 parent or parents.
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1 (3) A copy of the report shall be transmitted to the
2 intended parents
3 § 3510. Tissue-typing or blood-typing.
4 (a) Testing; petition.--The child and providers of genetic
5 materials who are parties to the contract shall be tested for
6 blood and tissue type within 14 days after receiving notice that
7 the child may reliably be blood-typed and tissue-typed. The
8 blood-typing and tissue-typing shall be performed at the expense
9 of the intended parents. Blood-type and tissue-type tests shall
10 not be delayed after the child's own blood and tissue types may
11 be determined, unless the tests would pose life-threatening
12 danger. The tests shall include the human leukocyte antigen
13 test. In order to avoid certification of parentage, within 14
14 days after the test results are mailed to the parties, the party
15 or parties seeking to assert that the child is not as intended
16 must file their petition and mail or otherwise serve notice
17 directly or on the agents of the other parties to the contract.
18 (b) Parents' rights and responsibilities.--If the intended
19 parent or parents prove that the child is not as intended, that
20 is not genetically related to the providers of genetic
21 materials, the intended parent or parents shall not be required
22 to retain or assume custody of the child or to make any payments
23 pursuant to the terms of the agreement. If the child is not as
24 intended because of physician or laboratory error, the intended
25 parent or parents shall be required to retain or assume custody
26 and shall be required to make all payments pursuant to the terms
27 of the agreement.
28 (c) Surrogate's rights and responsibilities.--
29 (1) If the surrogate proves that the child is not as
30 intended and that it contains her genetic materials, the
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1 surrogate may assume custody of the child if she chooses.
2 (2) If the child is not as intended due to physician or
3 laboratory error, the surrogate may not assume custody.
4 (3) The intended parents shall be entitled to damages as
5 specified in section 3505(1) (relating to remedies in the
6 event of breach) for breach of contract if the child is not
7 as intended for reasons other than physician or laboratory
8 error.
9 (d) Presumption.--It is presumed that the child is as
10 intended and that neither the physician nor the laboratory
11 caused any error. The burden of proof shall be on the party
12 asserting that the child is not as intended or that the
13 physician or lab erred.
14 (e) Payment for testing.--The intended parent or parents
15 shall pay for the blood-type and tissue-type testing of the
16 providers of genetic materials and the child.
17 (f) Waiver of objections.--If no petition is filed or if
18 notice is not mailed or otherwise served within 14 days after
19 the mailing of the test results, all objections to certification
20 of parentage shall be deemed waived.
21 § 3511. Certification of parentage.
22 The intended parents, the surrogate, or her husband, if any,
23 or, where appropriate, the Commonwealth may apply to the court
24 for certification after the testing has been completed or after
25 the parties have waived objections to certification of
26 parentage, but not later than after the child has attained his
27 or her first birthday.
28 (1) The court shall determine:
29 (i) Whether the child is genetically related to the
30 providers of genetic materials.
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1 (ii) Whether the child lacks the intended genetic
2 relationships with the providers of genetic materials for
3 a reason other than laboratory error, or whether the
4 parties have waived objections to certification.
5 (iii) Whether information of a substantial nature
6 about the parties or the child makes specific performance
7 of the agreement detrimental to the best interests of the
8 child.
9 (2) If the court determines positively as to
10 subparagraph (i) or (ii) and negatively as to subparagraph
11 (iii), the court shall certify that the intended parents are
12 the parents.
13 § 3512. Birth certificates.
14 Upon certification of parentage, the intended parent or
15 parents shall be entitled to a birth certificate showing him,
16 her or them to be the parent or parents of the child in the same
17 manner as provided when a decree of adoption is entered under
18 Part III (relating to adoption).
19 § 3513. Voluntary exchange of information.
20 Section 2905(d)(2) (relating to disclosure of information on
21 original certificate of birth) shall apply to a child born under
22 a surrogacy agreement, except that the surrogate may give her
23 consent to release identifying information only if the surrogate
24 contributed genetic material to the child.
25 § 3514. Sealed records.
26 (a) General rule.--All certification of parentage
27 proceedings shall be in camera, and the records shall not be
28 available for inspection, except by leave of court for good
29 cause shown.
30 (b) Exception.--An emancipated person born of a surrogacy
19890H1843B2371 - 24 -
1 agreement shall be entitled to have the court inform him or her
2 whether a proposed spouse is related by blood to the extent that
3 the court records reveal.
4 § 3515. Licensed agency.
5 (a) Agency of intended parents' choosing.--The intended
6 parent or parents shall employ the services of a licensed
7 facility of their choosing to perform the insemination of the
8 surrogate.
9 (b) Licensed surrogacy agency.--
10 (1) A licensed surrogacy agency shall meet the
11 requirements prescribed by the Department of Public Welfare.
12 (2) A licensed surrogacy agency shall:
13 (i) Be responsible for determining that the
14 requirements of section 3503 (relating to required
15 examination and health care provider responsibilities)
16 have been completed in the time periods required and
17 shall provide all counseling required under section 3503.
18 (ii) Maintain records of all births and such other
19 records as are required by regulations of the Department
20 of Public Welfare.
21 (iii) Inform the surrogate and the intended parents
22 that he, she or they are legally required to be
23 represented by an attorney.
24 (3) A licensed surrogacy agency shall not:
25 (i) Have on its staff a lawyer who shall render any
26 advice to any intended parent or surrogate or draft any
27 surrogacy agreement.
28 (ii) Make any referral to any lawyer for the purpose
29 of drafting, negotiating or contesting a surrogacy
30 agreement.
19890H1843B2371 - 25 -
1 (iii) Engage in the unauthorized practice of law.
2 § 3516. Legal representation.
3 The intended parent or parents shall not employ the same
4 lawyer as employed by the surrogate and her husband, if any. The
5 surrogate and her husband, if any, shall have access to legal
6 counsel of her or their own choosing during the negotiation of
7 the surrogacy agreement.
8 § 3517. Denial of application and award of custody.
9 The court may deny application for certification of
10 parentage, award custodial and parental rights to the surrogate
11 or deny the application and make the award of custodial and
12 parental rights to the surrogate only if:
13 (1) both intended parents die before they are certified
14 as the legal parents and the agreement provides that the
15 surrogate shall have custody in that event;
16 (2) the agreement provides for only one intended parent
17 and that parent dies before being certified as the legal
18 parent and the agreement provides that the surrogate shall
19 have custody in that event;
20 (3) after insemination, the surrogate learns that an
21 intended parent has been convicted of a crime that the court
22 finds indicative of that intended parent's lack of fitness as
23 a parent;
24 (4) the court finds that, for the same reasons as in
25 adoption proceedings, either or both intended parents are not
26 fit;
27 (5) the intended parent or parents have not assumed
28 responsibility for the child despite notice that the child
29 may be released from the health facility within seven days of
30 having received the notice, and the surrogate elects to seek
19890H1843B2371 - 26 -
1 an award of custodial and parental rights in lieu of specific
2 performance; or
3 (6) (i) the surrogate or the intended parents have not
4 been fully informed of their legal rights,
5 responsibilities and consequences of entering into a
6 surrogacy agreement by a lawyer and accepted their legal
7 rights, responsibilities and consequences;
8 (ii) the surrogate or the intended parents have not
9 been informed of all medical risks by a licensed
10 physician and consented to all known risks; and
11 (iii) the surrogate or the intended parents have not
12 been informed of the psychological risks and consented to
13 all known risks by one of the following: a physician
14 licensed in this Commonwealth and board-certified in
15 psychiatry; a person with a doctorate in clinical
16 psychology and licensed, registered or certified in this
17 Commonwealth; or a person with a master's degree in
18 social work and licensed, certified or registered in this
19 Commonwealth.
20 Section 2. This act shall take effect in six months.
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