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 (20th) 

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 fivebedroom 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 coparent [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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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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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 Act3for 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 
J-A28015-15

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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