J.F. v. D.B

66 Pa D. & C. 4th 1 (2004)

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Nature of the Case

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Facts

D.B. agreed to become a gestational surrogate for Surrogate Mothers Inc. (SMI). A gestational surrogate agrees to have embryos that are not genetically related to her implanted in her womb. J.F. and E.D., who reside in Ohio, wanted to become parents through a surrogate pregnancy. The parties to the surrogacy contract are J.R., the egg donor; D.B. and her husband, J.F.; J.F.'s paramour, E.D.; SMI; and SMI's director/attorney. D.B. gave birth by C-section to three slightly premature boys in Erie. Although J.F. and E.D. expressed interest in the triplets, they failed to learn the technique for monitoring the infants, and E.D. lied about visiting the infants in the hospital. D.B. and her husband learned how to monitor the triplets. D.B. decided to take the boys home, where she cared for them and her own three children. J.F. filed a complaint for sole custody of the triplets and a motion for special relief. The court granted temporary custody to D.B. and visitation five days a week for J.F., and E.D. J.F. and E.D. visited the children only two or three times a week, however, and often returned the children in soiled clothing. On December 16, 2003, D.B. filed an answer with a counterclaim for custody. Pennsylvania has no statute on surrogate parenting, the court noted. There was also no applicable Pennsylvania case law. Accordingly, the court relied on principles of contract law and public policy. The surrogacy contract was void as against the public policy of Pennsylvania. The contract failed to identify the legal mother for the children. Children should be able to identify who their parents are, even if they are not biologically or genetically connected to them. J.R., the egg donor, was not a party. E.D. is not genetically related to the children, nor is she J.F.'s wife. That left D.B. Although genetically unrelated to the children, D.B. carried them in her womb, gave birth to them and took them into her home to care for them. 'She has assumed 'maternity' if there were such a legal definition as there exists for 'paternity,'' the court determined. The court held D.B. to be the legal mother of the triplets since she carried and bore them and has taken care of them as a natural parent would. The contract also violated public policy because it allowed the parties to bargain away the children's custody and support rights. D.B. also had third-party standing in loco parentis.