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Assisted Reproduction Technology in Pennsylvania: Surrogates

Posted by attorney Alyssa Knisely

By Shaffer & Engle Law Offices, LLC posted in Assisted Reproduction on Saturday, January 26, 2013

Legislation on surrogacy has been proposed in Pennsylvania, but to date without enactment

By ** Attorney Alyssa H. Knisely**, Family Lawyer, Harrisburg, PA

The use of assisted reproduction, also termed alternative, or non-coital, reproduction, has become commonplace, and the breadth of variety of different techniques continues to expand. The term assisted reproductive technology (ART) refers to fertility treatments (or assisted reproduction) in which both sperm and eggs are handled outside the body. Historically, assisted reproduction had its start as medical treatment for infertility. As new techniques have evolved, and as the availability and breadth of services have expanded, so have the scope of indications and uses for assisted reproduction. Infertility continues to be the principle reason, but other circumstances may exist where utilization of assisted reproduction is appropriate.

Situations when Assisted ReproductionTechnology is often used:

  • One or both intended parents anticipate(s) chemotherapy and resultant sterility;
  • transgendered individuals contemplating castration (orchiectomy, Tophorectomy) and/or hormonal therapy;
  • Individuals facing significant risk of fatal injury, such as military personnel assigned to combat theaters;
  • Individuals with serious injuries, and not expected to survive-typically at the request of family members;
  • Individuals with HIV infection; or
  • Simply individuals who wish to defer parenting until after the normal period of fertility has elapsed.

In such instances gametes and/or embryos are being cryopreserved and stored for later use. Indeed, cryopreserved gametes or embryos are being used for reproduction posthumously, sometimes several years after the death or one or both progenitors.

The Use of Surrogates in Assisted Reproduction Technology

Pennsylvania has virtually no statutory law on third party reproduction, i.e. where a person (or that person's spouse) outside a marriage, and who otherwise intends to not be a parent of the child, agrees to provide some biological contribution to the child's existence by means other than sexual intercourse. In vitro fertilization (IVF), sperm and egg donation, and surrogacy are recognized. However, the rights of the individuals involved largely derive from private law in the form of contract, either with the treatment facility, or between or among participants in the assisted reproduction, as well as from the relatively sparse case law, and adaptation of statutory or case law that was formulated before facts unique to assisted reproduction were ever contemplated. Generally, in Pennsylvania, the parentage of children born as a result of third party reproduction, including artificial insemination by donor (AID), is determined in the same way as that of children born out of wedlock. (See link to blog article on ** Child Custody and Unwed Parents**).

As states have developed their own approaches to these problems, very different results have occurred, and consequently, conflicts of laws are bound to emerge as more and more states promulgate legislation, and courts decide cases, sometimes varying drastically from one state to another. Differences in U.S. law and that of other countries are often in direct conflict as well. These differences in law have given rise to the growing practice of cross-border reproduction, also commonly referred to as reproductive tourism.

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