Surrogacy disputes need legislation, not policy set by the courts, attorney says

By Kerry Goff | Jan 12, 2016

HARRISBURG - The Pennsylvania Superior Court recently agreed with a lower court that ruled a contract between a husband and wife and a gestational carrier would be declared binding and enforceable.

Attorney David Ladov - the chair of the Family Law Practice Group at Obermayer, Rebmann, Maxwell & Hippel - says the state Legislature needs to take a look at the issue.

“Unfortunately, the legislatures throughout the country, and especially in Pennsylvania, have not caught up with technology and have not provided a clear statutory approach to the overall issue of the surrogacy process," he said.

"Therefore, as is often the case when the legislature does not provide an answer, the courts are forced to create public policy and to make decisions.”

In the Superior Court's Nov. 23 ruling, a husband and wife going through a divorce sought to invalidate the surrogacy contract it had signed with a woman.

So that courts do not have to create these types of policies, there needs to be legislation “that addresses surrogacy contracts and sets up the right for citizens to enter into these types of contracts.” Ladov recently told Pennsylvania Record.

With regards to how this case, and cases like it in the future, should handle legal actions in a surrogate custody dispute, Ladov explained that “This case should be a regular custodial action between mom and dad as to who should have primary custody and who should have partial physical custody as set forth under the custody factors of our statute.”

Ladov further explained that this scenario differs from a more traditional breach of contract case involving two companies because, unlike a business contract, “There is a public policy of the welfare of a child involved that would not be in a business situation.”

“Here, the mom and dad made a contract with a surrogate to carry their child and then after birth, the surrogate would be done with her job,” Ladov said.

“The public policy issue gets thrown in to the mix because the Commonwealth needs to protect unborn children who are being contracted for their gestation and birth. The opinion by Judge Susan Gantman is a very good analysis of this issue and how it gets resolved.”

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