J-A28015-15

                             2015 PA Super 244

IN RE: BABY S.                           :      IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                                         :
                                         :
APPEAL OF: S.S.                          :          No. 1259 EDA 2015

               Appeal from the Order Entered April 23, 2015
           In the Court of Common Pleas of Montgomery County
                   Orphans’ Court at No(s): 2014-X2543


BEFORE: GANTMAN, P.J., PANELLA, J., and SHOGAN, J.

OPINION BY GANTMAN, P.J.:                       FILED NOVEMBER 23, 2015

     Appellant, S.S., appeals from the order entered in the Montgomery

County Court of Common Pleas, which confirmed Appellant as the legal

mother of Appellee Baby S., and found Appellant had breached the terms of

her surrogacy contract with L.S., the biological father of Baby S., and J.B.,

the gestational carrier of Baby S. We affirm.

     The relevant facts and procedural history of this appeal are as follows.

Appellant and L.S. were married in August 2011. They decided to have a

child, and Appellant underwent fertility treatments.       Appellant and L.S.

ultimately agreed to use a gestational carrier.     In 2012, they contacted

Reproductive Possibilities, a New Jersey company that offers services to

individuals and couples who wish to have children with the use of assisted

reproductive   technology.     Reproductive     Possibilities   facilitates   and

coordinates gestational carrier arrangements for its clients.            Melissa

Brisman, an attorney who is the sole owner of Reproductive Possibilities, met
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with Appellant and L.S. to discuss the option of gestational surrogacy.

Appellant and L.S. signed a service agreement with Reproductive Possibilities

on November 8, 2012. The service agreement identified Appellant and L.S.

as “Intended Parents” and provided in part as follows:

        Intended Parents desire to have a child or children.
        Intended Parents have decided to retain Reproductive
        Possibilities to assist them in selecting, coordinating and
        assisting to screen a Gestational Carrier who will carry and
        bear a child conceived from embryos belonging to
        Intended Parents, and to help Intended Parents navigate
        their journey through the gestational carrier process.

                                 *    *    *

        Intended Parents may terminate this Agreement in writing
        at any time for any reason, provided the Gestational
        Carrier has not undergone the IVF/Embryo Transfer. If the
        Gestational Carrier has already undergone the IVF/Embryo
        Transfer and Intended Parents wish to terminate this
        Agreement, they may only do so once it is confirmed that
        Gestational Carrier is NOT pregnant.

(N.T. Hearing, 3/11/15, Exhibit RL-1; Supp. R.R. at 17a, 25a).     Appellant

and L.S. also hired Attorney Brisman to represent them during the surrogacy

process. Appellant told Attorney Brisman she wanted a gestational carrier in

a state where Appellant could be named the mother on the child’s birth

certificate without having to adopt the child. Attorney Brisman has handled

numerous surrogacy cases in approximately twenty to thirty counties in

Pennsylvania, and she advised a formal adoption would be unnecessary

under Pennsylvania law in this context.

     J.B. resides in Pennsylvania and had previously served as a gestational


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carrier for another couple. She applied to be a surrogate again in 2012 and

Reproductive Possibilities matched her with Appellant and L.S. In an email

sent to J.B. on November 8, 2012, Appellant stated:

        [L.S.] and I have wanted a child since we started dating
        four years ago. I come from a family of three, and the
        memories I share with my sisters, I will have for a lifetime.
        [My child, J.S.,] absolutely fulfills me, but I do long for
        another child to contribute to the laughter and love of our
        family.

        I am a person who can appreciate the magnitude of what a
        gestational carrier will be doing for us. It really is a
        miracle that something like this can actually take place;
        that you are willing to work with a couple you don’t even
        know to conceive a baby and carry that baby and nurture
        it for 40 weeks for us. … Once the baby arrives, I expect
        to stay in touch; however, I don’t expect the
        communication to be as often as it would during the
        pregnancy. I would probably reach out a few times a year
        and send pictures of the child.

(N.T. Hearing, Exhibit P-1; Supp. R.R. at 36a). On May 14, 2013, Appellant

and L.S. entered into a service agreement with an egg donation agency

called Tiny Treasures.   The agreement referred to Appellant and L.S. as

“Intended Parents” and stated in part:

        Intended Parents desire to have a child or children related
        to them and the Intended Parents are unable to produce
        viable eggs of their own and/or it is inadvisable for the
        Intended Parents to use their own eggs to achieve a
        pregnancy due to a genetically or medically related
        condition.

                                 *    *    *

        [] Intended Parents desire to retain the services of Tiny
        Treasures, LLC, and Tiny Treasures, LLC desires to provide
        the Intended parents with its services of locating an Egg

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         Donor and other services as provided in this Agreement for
         the express purpose of egg donation.

(N.T. Hearing, Exhibit RL-2; Supp. R.R. at 37a).          Appellant and L.S.

ultimately executed an ovum donation agreement with an anonymous donor

selected through Tiny Treasures. The ovum donation agreement provided in

part as follows:

         The sole purpose of this Agreement is to enable Intended
         Mother and Intended Father to have a child by means of in
         vitro fertilization using ova donated by Donor and semen
         from the Intended Father or a sperm donor. …

                                 *    *    *

         [] The Parties understand that the Intended Parents have
         spent many years, suffered much pain and agony to bring
         a Child into their family and are now relying greatly on
         Donor to help produce a Child.

                                 *    *    *

         Intended Parents warrant that they have discussed the
         implications of parenting a Child conceived by ovum
         donation,   and   that   they   are    comfortable and
         knowledgeable regarding such implications.

                                 *    *    *

         Donor agrees that the Intended Mother shall enter her
         name as the mother and Intended Father shall enter his
         name as the father on the birth certificate of any Child
         born from such Donated Ova. Donor further agrees that it
         is in the best interests of the Child that she not attempt to
         assert her maternity by any means, including a maternity
         action or otherwise, or attempt to form a parent-child
         relationship with the Child.

         Donor understands that the Intended Parents shall be
         conclusively presumed to be the legal parents of any Child
         conceived pursuant to this Agreement. Donor shall not

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         have any parental rights. Intended Parents shall take
         parental responsibility and custody of any Child conceived
         pursuant to this Agreement, immediately after birth,
         regardless of whether the Child suffers from any physical
         or mental disease or defect.

(N.T. Hearing, Exhibit RL-4; Supp. R.R. at 49a-71a). Having selected an egg

donor, Appellant, L.S., and J.B. entered into a gestational carrier contract on

September 12, 2013.     The contract identified Appellant (S.S.) and L.S. as

the intended mother and father respectively, and J.B. as the gestational

carrier, and provided in part as follows:

         [] Intended Mother…wishes to be the mother of a child
         who is biologically related to her husband….

                                  *    *    *

         [T]he Parties mutually agree as follows:

                                  *    *    *

         It is the intention of the Gestational Carrier that she is
         entering into this Agreement to bear a Child for the
         Intended Parents and not for the purpose of having a Child
         who the Gestational Carrier will raise or with whom she will
         have a legal relationship.

         [] The Intended Parents agree to begin working on
         declaring their legal parentage by the twentieth (20 th)
         week of pregnancy and agree to accept custody and legal
         parentage of any Child born pursuant to this Agreement.
         …    The Gestational Carrier shall have no parental or
         custodial rights or obligations of any Child conceived
         pursuant to the terms of this Agreement….

                                  *    *    *

         [T]he Intended Parents agree to assume legal
         responsibility for any Child born pursuant to this
         Agreement as long as the Parties otherwise comply with

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         the terms of this Agreement….

(N.T. Hearing, Exhibit P-2; R.R. at 20a-42a). The contract further provided

that Appellant or L.S. could terminate the agreement under certain

conditions but not after J.B. became pregnant in the manner described.

Additionally, the contract contained provisions directing Appellant and L.S. to

compensate J.B. for certain expenses associated with the surrogacy process

and pregnancy. Appellant paid over $100,000.00 to cover those expenses

and L.S. contributed a $5,000.00 payment.

      J.B. underwent an embryo transfer procedure on November 7, 2013.

The embryo was created from the sperm of L.S. and an egg from the

anonymous donor and was implanted in J.B.’s uterus.        Appellant and L.S.

were present for the procedure and repeatedly thanked J.B. for agreeing to

carry their baby. The embryo transfer was successful, and J.B.’s pregnancy

was confirmed on November 18, 2013. In preparation to raise another child,

Appellant and L.S. moved from their New York City brownstone to a five-

bedroom house in New Jersey.      During the pregnancy, Appellant and L.S.

communicated with J.B. through phone calls, e-mails, and text messages.

In March 2014, J.B. had a twenty-week ultrasound, which Appellant and L.S.

attended.   Appellant and L.S. again expressed their gratitude to J.B., and

J.B. described the meeting as positive. At no time did Appellant indicate to

J.B. that Appellant did not intend to be the mother of Baby S.

      In April 2014, Attorney Brisman began preparations to obtain a court


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order designating Appellant and L.S. as the parents of Baby S. on the child’s

birth certificate, pursuant to the Pennsylvania Department of Health (“DOH”)

policy and procedures regarding assisted conception birth registrations.1

Appellant, however, refused to sign the relevant paperwork because

Appellant and L.S. were then having marital difficulties. Appellant sent an

email to an employee at Reproductive Possibilities on April 15, 2015, in

which she stated, “[L.S.] and I are trying to figure out how we can best co-

parent [Baby S.] in the wake of our irreconcilable differences.”          (N.T.

Hearing, Exhibit RL-8; Supp. R.R. at 72a).      Due to Appellant’s refusal to

cooperate and her intent to seek a divorce, Attorney Brisman did not

attempt to obtain a pre-birth court order naming Appellant and L.S. as the

legal parents of Baby S.        Attorney Brisman ultimately withdrew her

representation of Appellant and L.S.

      On July 17, 2014, while still pregnant with Baby S., J.B. filed a petition

for “Assisted Conception Birth Registration and to Establish Parentage,”

which sought a court order declaring Appellant and L.S. the legal parents of

Baby S.   The petition also requested the court order to direct the DOH to


1
  At the hearing on J.B.’s petition, the guardian ad litem introduced a 2004
memorandum from the DOH outlining the procedure in assisted conception
births for placing the names of the intended parents on the baby’s birth
certificate. The memorandum stated the intended parents must submit to
the DOH Division of Vital Records several documents, including (1) a court
order stating that any certified copies of the birth certificate shall list the
intended mother and father as the child’s parents and (2) a supplemental
report of assisted conception containing information from the intended
parents. (See N.T. Hearing, Exhibit GAL-2; Supp. R.R. at 175a-178a).
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J-A28015-15


issue a birth certificate which named Appellant and L.S. as the parents. The

court subsequently granted J.B.’s motion to amend the petition to include a

count for counsel fees against Appellant.

      J.B. gave birth to Baby S. at Doylestown Hospital on August 5, 2014.

J.B. was named as the mother on Baby S.’s birth certificate and no name

appeared for the father. L.S and Baby S. subsequently moved to California,

where L.S. lived before his marriage to Appellant. L.S. applied for medical

assistance from the state of California because Appellant did not add Baby S.

to her health insurance policy.     J.B. received a bill from the Children’s

Hospital of Philadelphia for the aftercare of Baby S. J.B. also stated she has

been contacted by the state of California regarding her potential liability for

child support.

      Appellant filed a response with new matter to J.B.’s petition on August

12, 2014, in which she claimed the parties’ gestational carrier contract was

unenforceable.2   On September 2, 2014, L.S. filed responsive pleadings to

J.B.’s petition and Appellant’s new matter, as well as a counterclaim against

Appellant for breach of contract, specific performance and counsel fees. The

guardian ad litem for Baby S. also filed responsive pleadings to J.B.’s

petition and to Appellant’s new matter.

      Following two days of hearings on March 11, 2015, and April 21, 2015,

the court entered an order on April 21, 2015, which declared Appellant and

2
 Appellant also alleged L.S. induced her to sign the contract through fraud
and duress but later abandoned those claims.
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J-A28015-15


L.S. as the legal parents of Baby S. and authorized the DOH to issue an

amended birth certificate in accordance with the order.       The court further

found Appellant had breached the gestational carrier contract and was liable

for J.B.’s legal expenses under the terms of the contract. On April 23, 2015,

the court entered an amended order to correct the birthdate of Baby S. The

court issued a second amended order on May 4, 2015, which added

Appellant’s birth name (initials).   Appellant filed a timely notice of appeal

and a concise statement of errors complained of on appeal per Pa.R.A.P.

1925(a)(2)(i).

      Appellant raises the following issues for our review:

         WHETHER THE PROVISIONS OF THE SURROGACY
         AGREEMENT BETWEEN THE PARTIES ATTEMPTING TO
         CREATE PARENTAGE OF A CHILD BY CONTRACT ARE
         VALID AND ENFORCEABLE UNDER PENNSYLVANIA LAW?

         WHETHER PENNSYLVANIA SHOULD RECOGNIZE                     THE
         PRINCIPLE OF “MATERNITY BY ESTOPPEL”?

      In her first issue, Appellant argues the Pennsylvania legislature has

declined to enact any law recognizing the validity of surrogacy agreements,

despite its consideration of a bill introduced in 2005 that addressed the

issue. Appellant contends this legislative inaction illustrates the legislature’s

“distinct reluctance” to recognize surrogacy agreements as binding and

enforceable. Appellant asserts the DOH policy regarding assisted conception

birth registration lacks the force or effect of law and is intended merely as

guidance in cases in which all parties agree on the issue of parentage.


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Appellant further claims that no judicial decision in the Commonwealth has

sanctioned      surrogacy   agreements,   and    the   trial   court’s   reliance   on

Ferguson v. McKiernan, 596 Pa. 78, 940 A.2d 1236 (2007), is misplaced

because the Supreme Court did not address the issue of whether parentage

can be established via contract.     Appellant also distinguishes J.F. v. D.B.,

897 A.2d 1261 (Pa.Super. 2006), appeal denied, 589 Pa. 739, 909 A.2d

1290 (2006), as involving only the issue of whether a gestational carrier,

with no genetic relation to the triplets she birthed, had standing to seek

custody of the babies. Appellant submits the J.F. Court refused to address

the validity of the surrogacy contract at issue as “[t]hat task is for the

legislature.”    See Appellant’s Brief at 13 (quoting J.F., supra at 1265).

Appellant supports her position with case law from states which have

declared surrogacy contracts void and unenforceable.

      Appellant argues Pennsylvania law provides only two ways for a person

to establish parentage—by genetics/biology or by adoption—and neither

situation applies to Appellant. Appellant claims Pennsylvania law does not

provide for parentage by contract, and this Court has no authority to create

a new method to establish parentage.            Appellant asserts the surrogacy

contract at issue was an unlawful means of circumventing the statutory

adoption procedure, which was the sole route available for Appellant to be

declared a legal parent of Baby S. Appellant insists J.B. is the legal mother

of Baby S. and a court would have to terminate J.B.’s parental rights


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pursuant to the Adoption Act3 for any adoption of Baby S. to occur.

Appellant    further   contends   the    contract   impermissibly   provided   for

compensation to J.B. for releasing custody of Baby S.               Alternatively,

Appellant argues that if J.B. had no parental rights to relinquish then

Appellant could not have fulfilled her contractual responsibilities to become

Baby S.’s legal mother under the doctrine of impossibility of performance.

Appellant claims the contract violates public policy because it purports to

create a child-parent relationship without an adoption or judicial oversight,

in direct conflict with Pennsylvania law. Appellant concludes the surrogacy

contract is void and unenforceable as against public policy, and this Court

should determine that Appellant is not the legal mother of Baby S.             We

disagree.

        The issue of whether a contract is void as against public policy

presents a question of law, and our standard of review is plenary.             See

Ridley ex rel. Ridley v. State Farm Mut. Auto. Ins. Co., 745 A.2d 7, 9

(Pa.Super. 1999), appeal denied, 572 Pa. 708, 813 A.2d 843 (2002).

“Generally, a clear and unambiguous contract provision must be given its

plain meaning unless to do so would be contrary to a clearly expressed

public policy.” Eichelman v. Nationwide Ins. Co., 551 Pa. 558, 563, 711

A.2d 1006, 1008 (1998).

          Whether a cause of action or claim for relief is repugnant
          to public policy implicates certain standards:

3
    23 Pa.C.S.A. §§ 2101-2938.
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          In our judicial system the power of courts to
          formulate pronouncements of public policy is sharply
          restricted; otherwise they would become judicial
          legislatures rather than instrumentalities for the
          interpretation of law.       Generally speaking, the
          Legislature is the body to declare the public policy of
          a state and to ordain changes therein…. This is
          peculiarly so where a matter of expediency is up for
          consideration…. In many cases, on questions of
          good morals, as opposed to mere expediency, the
          courts may declare and apply the public policy of the
          State; …again, where an alteration in public policy on
          any point of general interest has actually taken
          place, and is indicated by long-continued change of
          conduct on the part of the people affected, when
          such a change has become practically universal, the
          courts may recognize this fact and declare the
          governing public policy accordingly…. But neither of
          these rules controls the…case…where no question of
          morality is involved; it is purely one of expediency;
          and no gradual or universal change of customary
          practice has occurred.         Public policy in the
          administration of the law by the court is essentially
          different from what may be public policy in the view
          of the legislature. With the legislature it may be,
          and often is, nothing more than expediency. The
          public policy which dictates the enactment of a law is
          determined by the wisdom of the legislature. Public
          policy…with the latter [the legislature] may be, and
          often is, nothing more than expediency; but with the
          former [the courts], it must, and may only, be a
          reliance upon consistency with sound policy and
          good morals as to the consideration or thing to be
          done.

          The right of a court to declare what is or is not in
          accord with public policy does not extend to specific
          economic or social problems which are controversial
          in nature and capable of solution only as the result of
          a study of various factors and conditions. It is only
          when a given policy is so obviously for or against the
          public health, safety, morals or welfare that there is
          a virtual unanimity of opinion in regard to it, that a

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            court may constitute itself the voice of the
            community in so declaring.           There must be a
            positive, well-defined, universal public sentiment,
            deeply integrated in the customs and beliefs of the
            people and in their conviction of what is just and
            right and in the interests of the public [well-being].
            Familiar     illustrations    are     those    involving
            unreasonable restraints of marriage or of trade,
            collusive arrangements for obtaining divorces,
            suppression of bids for public contracts, interference
            with freedom of conscience or religion. If, in the
            domain of economic and social controversies, a court
            were, under the guise of the application of the
            doctrine of public policy, in effect to enact provisions
            which it might consider expedient and desirable,
            such action would be nothing short of judicial
            legislation, and each such court would be creating
            positive laws according to the particular views and
            idiosyncrasies of its members. Only in the clearest
            cases, therefore, may a court make an alleged public
            policy the basis of judicial decision.

            The standard for deciding a case on strict public
            policy grounds is unquestionably high.

Olympus Corp. v. Canady, 962 A.2d 671, 675-76 (Pa.Super. 2008)

(internal citations omitted).   When assessing whether a contract violates

public policy:

         [T]his Court is mindful that public policy is more than a
         vague goal which may be used to circumvent the plain
         meaning of the contract.

            Public policy is to be ascertained by reference to the
            laws and legal precedents and not from general
            considerations of supposed public interest. As the
            term “public policy” is vague, there must be found
            definite indications in the law of the sovereignty to
            justify the invalidation of a contract as contrary to
            that policy…. Only dominant public policy would
            justify such action.     In the absence of a plain
            indication of that policy through long governmental

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            practice or statutory enactments, or of violations of
            obvious ethical or moral standards, the Court should
            not assume to declare contracts…contrary to public
            policy.    The courts must be content to await
            legislative action. …

            It is only when a given policy is so obviously for or
            against the public health, safety, morals or welfare
            that there is a virtual unanimity of opinion in regard
            to it, that a court may constitute itself the voice of
            the community in so declaring [that the contract is
            against public policy].

Ferguson, supra at 93 n.16, 940 A.2d at 1245 n.16 (quoting Eichelman,

supra at 563, 711 A.2d at 1008) (internal citations omitted).        See also

Shick v. Shirey, 552 Pa. 590, 716 A.2d 1231 (1998) (recognizing

independent authority of courts to discern public policy in absence of

legislation but rejecting claim that legislature’s failure to amend Workers’

Compensation Act to include provisions for filing claim for retaliatory

discharge rendered Court powerless to recognize that cause of action;

stating: “No sound analysis can be drawn from legislative silence.        An

equally compelling argument may be made that the legislature has not

perceived that retaliatory discharge for filing of workers’ compensation

claims has become such a pervasive problem that it requires the experience

of an administrative agency”); J.F., supra at 1279 (stating: “Only in the

clearest of cases may a court declare a contract void as against public

policy”).

      The Ferguson Court found binding and enforceable an oral agreement

between a mother and a sperm donor (who previously was in a relationship

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with the mother), according to which the sperm donor agreed to surrender

all rights to the children arising from his biological paternity in return for his

release from any attendant support obligations.        Ferguson, supra.       The

Court rejected the mother’s claim that the contract violated public policy,

characterizing her claim as “unsustainable in the face of the evolving role

played by alternative reproductive technologies in contemporary American

society.” Id. at 93, 940 A.2d at 1245.

          It derives no authority from apposite Pennsylvania law,
          and it violates the commonsense distinction between
          reproduction via sexual intercourse and the non-sexual
          clinical options for conception that are increasingly
          common in the modern reproductive environment. The
          inescapable reality is that all manner of arrangements
          involving the donation of sperm or eggs abound in
          contemporary society, many of them couched in contracts
          or agreements of varying degrees of formality.          An
          increasing number of would-be mothers who find
          themselves either unable or unwilling to conceive and raise
          children in the context of marriage are turning to donor
          arrangements to enable them to enjoy the privilege of
          raising a child or children, a development neither our
          citizens nor their General Assembly have chosen to
          proscribe despite its growing pervasiveness.

Id. (internal citation and footnote omitted).      Our Supreme Court further

stated:

          [W]e cannot agree with the [trial court and Superior Court]
          that the agreement here at issue is contrary to the sort of
          manifest, widespread public policy that generally animates
          the courts’ determination that a contract is unenforceable.
          The absence of a legislative mandate coupled to the
          constantly evolving science of reproductive technology and
          the other considerations highlighted above illustrate the
          very opposite of unanimity with regard to the legal
          relationships arising from sperm donation, whether

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        anonymous or otherwise. This undermines any suggestion
        that the agreement at issue violates a dominant public
        policy     or      obvious    ethical    or      moral
        standards…demonstrating    a   virtual  unanimity   of
        opinion…sufficient to warrant the invalidation of an
        otherwise binding agreement.

Id. at 97, 940 A.2d at 1248 (internal citations and quotation marks

omitted). The Court also observed that but for the parties’ agreement, the

children would not have been born.            See id.   See also J.F., supra

(declining to address validity of surrogacy contract but holding gestational

carrier without biological connection to children was not children’s legal

mother and had no standing to challenge biological father’s right to

custody).

     Instantly, the trial court reasoned as follows:

        We can state, without any hesitation, that the contract
        here at issue must be enforced. The parties all had the
        benefit of able counsel before entering into it. Every detail
        of the process was spelled out to the nth degree.
        Everything proceeded according to plan until the marriage
        of L.S. and [Appellant] unraveled. Baby S. is in the world
        only because of this and the other related contracts which
        [Appellant] signed willingly and voluntarily. Indeed, it
        was, for the most part, [Appellant’s] assets that enabled
        this baby to be created and delivered.

                                 *     *      *

        [W]e will not presume to declare the Commonwealth’s
        public policy on the issue at hand. Indeed, as pointed out
        by counsel for L.S. and J.B. as well as by the guardian ad
        litem, the closest thing we have to a “long governmental
        practice”—a phrase used by the Supreme Court in the
        Ferguson case—on the topic is the [DOH’s] 20-year old
        directive designed to facilitate assisted conception birth
        registrations. That this administrative procedure exists

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         and courts in the Commonwealth routinely enter orders
         that authorize the issuance of birth certificates for children
         born as a result of alternate reproductive technologies
         would clearly militate against a finding that surrogacy
         contracts violate public policy. Instead, we determine that
         the parties to this contract must be held to its terms.
         While we have no power to force [Appellant] to assume
         her role as mother and participate fully in all aspects of
         Baby S.’s life, we can impose upon her the role of legal
         mother with, at least, the financial responsibilities that
         entails.

(Trial Court Opinion, filed May 28, 2015, at 10, 14).      We agree with the

court’s analysis. Appellant does not dispute that she freely entered into the

gestational carrier contract and related agreements, which unambiguously

stated that she and L.S. were the intended legal parents of Baby S. Those

agreements made clear J.B. would have no parental rights or obligations

with respect to Baby S., and J.B.’s sole role was that of a gestational carrier.

In the year leading up to the pregnancy and for months after the pregnancy

was confirmed, Appellant’s actions were consistent with her declared

intention to be Baby S.’s mother. Baby S. would not have been born but for

Appellant’s actions and express agreement to be the child’s legal mother.

See Ferguson, supra.

      Appellant failed to meet her burden to show the gestational carrier

contract is contrary to public policy in Pennsylvania.     Despite Appellant’s

emphasis on the fact that no statute recognizes the validity of surrogacy

agreements, the absence of a legislative mandate one way or the other

“undermines any suggestion that the agreement at issue violates a dominant


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public policy or obvious ethical or moral standards…demonstrating a virtual

unanimity of opinion…sufficient to warrant the invalidation of an otherwise

binding agreement.” See id. at 97, 940 A.2d at 1248; Shick, supra.

      Moreover,   case   law   from   the      past decade   reflects    a   growing

acceptance of alternative reproductive arrangements in the Commonwealth.

The Ferguson Court expressly recognized the enforceability of a contract

that addressed parental rights and obligations in the context of assisted

reproductive technology, which in that case involved sperm donation. See

id.   The Court acknowledged “the evolving role played by alternative

reproductive technologies in contemporary American society.”             Id. at 93,

940 A.2d at 1245. The Court acknowledged “non-sexual clinical options for

conception…are    increasingly   common         in   the   modern       reproductive

environment” and noted that the legislature had not prohibited donor

arrangements despite their “growing pervasiveness.”            Id.      The Court’s

language and focus on the parties’ intent is at odds with Appellant’s position

that gestational carrier contracts, a common non-sexual clinical option for

conceiving a child, violate a dominant public policy based on a “virtual

unanimity of opinion.” See id. Appellant’s claim is further undercut by the

long-established DOH procedure for placing the intended parents’ names on

a child’s birth certificate when a gestational carrier is used, and the

testimony of Attorney Brisman, who has successfully used the DOH

procedure hundreds of times in Pennsylvania.


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      Appellant is incorrect to propose she could become the legal mother of

Baby S. only through a formal adoption, which would require termination of

J.B.’s parental rights. Acting solely as the gestational carrier, J.B. was not

the biological mother of Baby S. See J.F., supra. Therefore, J.B. had no

parental rights to Baby S. and none to relinquish under the Adoption Act.

See 23 Pa.C.S.A. § 2502.        J.B. was named on the birth certificate as a

ministerial act precisely because Appellant had reneged on the surrogacy

contract.

      Further, the Adoption Act is not the exclusive means by which an

individual with no genetic connection to a child can become the child’s legal

parent; and nothing in the Adoption Act evinces a “dominant public policy”

against the enforcement of gestational carrier contracts. The legislature has

taken no action against surrogacy agreements despite the increase in

common use along with a DOH policy to ensure the intended parents acquire

the status of legal parents in gestational carrier arrangements. Absent an

established public policy to void the gestational carrier contract at issue, the

contract    remains   binding   and   enforceable   against   Appellant.   See

Eichelman, supra. Accordingly, we affirm.4

      Order affirmed.




4
  Due to our disposition, we decline to address Appellant’s second issue
regarding the principle of “maternity by estoppel.”
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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/23/2015




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