rulings in reproductive law
By Melissa B. Brisman, Esq., Reproductive
Fertility Today Magazine, July/August 2005
Commonwealth of Pennsylvania continues to be a breeding
ground for setting groundbreaking precedents in the ever
growing field of reproductive law.
the introduction of in vitro fertilization, a process which
enables prospective parent(s) to conceive a child genetically
related to themselves, and the growing acceptance and popularity
of embryo, egg and/or sperm donation, there has been an
increasing battle waged in courts whereby prospective parents
are seeking judicial relief from the long and arduous process
f adoption and/or termination of parental rights by requesting
that a “Birth Order” be issued prior to the
child’s birth enabling the parents(s) to place their
name(s) on the birth certificate at the moment of birth.
This eliminates the burden of a post-birth legal process
to amend the birth certificate.
landmark ruling, issued on December 13, 2004, Judge P.W.
Schmehl of the Berks County, Pennsylvania Orphan’s
Court upheld the right of an intended mother and an intended
father of a child due to be born from a gestational carrier
to be officially recognized as the child’s legal parents.
Judge Schmehl ruled that the intended mother and the intended
father of the child, due to be born sometime in April 2005,
must be listed on the birth certificate of the child as
the legal parents of the child. This case is of special
interest as the child at the center of the issue was created
using embryos donated by the parents. Therefore, no party
to this arrangement is biologically related to the child
due to be delivered this April. The intended parents had
entered into an agreement with an embryo donor to obtain
custody of the embryo(s with the intention of having the
embryo(s) implanted into the uterus of a gestational carrier
for the purpose of gestating their child. This momentous
ruling is the first of its kind in Pennsylvania and will
allow the birth certificate to be issued without the need
for an adoption by the parents or an amendment to the original
birth certificate. The ruling also vests legal parentage
with the intended parents and eliminates the need to terminate
the gestational carrier’s rights to the child.
thereafter another landmark ruling, issued on January 6,
2005 by Judge Linda Wallach Miller of Monroe County, Pennsylvania,
Orphans Court upheld the right of a biological father of
twins born January 13, 2005, to a gestational carrier, to
be officially recognized as the children’s only parent.
Judge Miller ruled that the gay man, who is the biological
father of the twins, must be listed on the birth certificates
of each child as the sole legal parent of the children.
No mother was listed on the birth certificates. The biological
father’s sperm was used to fertilize eggs of an egg
donor, in an in vitro fertilization procedure. The resulting
embryo(s) were then implanted into the uterus of a gestational
carrier. By ruling in favor of the biological father’s
petition to the court, the court recognized that, although
the gestational carrier delivered the children, she was
not the biological mother nor was she the legal mother,
thereby releasing any legal obligations she otherwise would
have had by being named as the mother on the birth certificates.
This ruling also eliminated the need for further judicial
proceedings to terminate the gestational carrier’s
rights post-birth. This ruling is another first of its kind
in Pennsylvania and represents a major milestone in both
reproductive and gay rights.
rulings represent clear victories for reproductive rights
and the rights of parent(s) who must use alternative means
to create their family. I am hopeful that they symbolize
a growing trend in the judicial system to recognize, honor
and embrace these new paths to parenthood. Most importantly,
these rulings signify the acceptance by the judiciary of
the legal contracts and agreements that parties enter into
in contemplation of creating new families. It is a giant
step forward for both the legal, medical and scientific
faced with problems of infertility or other factors which
prevent individual(s) from creating their family “the
old-fashioned way,” the prospect of attempting an
alternative route such as in vitro fertilization or embryo,
egg and/or sperm donation can seem like an insurmountable
task. I seek to change the way that the states view genetic
motherhood, and one by one, I am getting states to recognize
genetic parents and parents who are recipients of generous
donors, for what they are-the rightful parents of the child(ren).
It has been my goal to try to alleviate the many barriers
faced by prospective parents and help them in their pursuit
of a family of their own. I have learned through firsthand
experience that using alternative paths to parenthood can
be very daunting, but through hard work by both myself and
my wonderful staff we have hopefully made this experience
a little less complicated and a lot more joyful.
Brisman practices reproductive law in Park Ridge, New Jersey.
She is licensed to practice law in New Jersey, New York,
Massachusetts, and Pennsylvania.