A common concern when a couple uses a woman as a surrogate to carry their child is that the surrogate will become attached to the child she is carrying and fight to retain custody of the child.  In a recent Pennsylvania Superior Court case, the opposite occurred. The woman who used a surrogate to become a mother tried to disavow herself of any responsibility for the child. 

The intended parents, a married couple, entered into a surrogacy contract with a woman who agreed to carry the child.  A company which facilitates and coordinates gestational carrier agreements for individuals wishing to have a child provided and explained the contract to the intended parents.  Both intended parents signed the contact.

In the contract, both intended parents agreed to become the legal parents of any child born and to assume all parental rights and responsibilities attendant with becoming legal parents.  Further, they agreed to pay for all child-birth related costs.

During the surrogate’s pregnancy, the intended mother refused to sign the relevant paperwork to have her named on the birth certificate because she and intended father were having marital difficulties and separated.   Because of the intended mother’s refusal, when the surrogate gave birth to the child, the hospital placed her name on the birth certificate.  No father was named on the birth certificate.

The intended father, now separated from the intended mother,  took custody of the child and moved to California.  The intended father filed for medical assistance because the intended mother did not add the child to her health insurance policy.  The surrogate received a bill from the hospital for the aftercare of the child and was contacted by the state of California for her potential liability for child support. The surrogate filed an action in Court to have intended mother declared the legal parent of the child.

Intended mother argued to the Court that the gestational contract was unenforceable, given that there was no Pennsylvania statutory law recognizing the validity of surrogacy contracts.  Further, she argued the only way a person could become a parent was through biological parentage or adoption.    The Court rejected these arguments and found that intended mother was the legal parent of the child and was bound by the terms of the surrogacy contract.

The Court noted that but for the surrogacy contract, no child would have been born.  There was no public policy reason not to enforce the gestational contract, especially in light of the evolving role of assisted reproductive technology in today’s society.  The intended mother is now financially responsible to provide support to the child.

For more information on child custody cases and latest developments, contact a child custody lawyer at Astor Weiss Kaplan & Mandel LLP at 215-790-0100.