Law of Wills, 2016A

3. Should genetics be the sole indicator of maternity? Why? Why not?
4. Should the outcome of the case be different if it involved a traditional surrogate?
5. Perry and his partner Daniel wanted to have a child to rear. Perry’s sister, Emily, agreed to be
artificially inseminated with Daniel’s sperm and to serve as a surrogate for the men. After the birth
of the child, Perry and Daniel separated. Who are the legal parents of the child applying the
reasoning of the above case? Does this outcome make sense?
6.6.1.2 The Gestational Test
When establishing the mother-child relationship, some courts elevate giving birth above all
other factors. In those jurisdictions, the courts give the maternal rights to the person who gives
birth. Thus, a traditional surrogate is the legal mother of the child created as the result of a surrogacy
arrangement. Moreover, since she gives birth to the child, the courts recognize the maternal rights of
the gestational surrogate.
J.F. v. D.B., 2004 WL 1570142, 66 Pa. D. & C. 4 th 1 (2004)
CONNELLY, J.
A man and his girlfriend signed a surrogacy contract with a woman who agreed to act as their
surrogate. The surrogate became pregnant with triplets. The children were created using the
contracting man’s sperm and donor eggs. Therefore, the contracting woman was not biologically
related to the children. During the pregnancy, the contracting couple paid the surrogate’s expenses
and her medical bills. The babies were born slightly premature at 35 weeks old and had some minor
medical problems. Thus, they were placed in the neonatal intensive care unit (NICU). After the
birth of the children, the relationship between the surrogate and the contracting couple deteriorated.
The surrogate did not approve of the limited contact the contracting couple chose to spend with the
triplets while they were hospitalized. Consequently, the gestational surrogate sought to gain custody
of the triplets.
The Court had to decide the following issue: whether a gestation surrogate has standing to file a
custody action against the man who provided the sperm used to create the children. The
Pennsylvania Legislature had not enacted a surrogacy statute. Thus, the Court reviewed the statutes
in other states. In reaching its decision, the Court also relied upon the state tradition and public
policy. The Court acknowledged the egg donor as the biological mother. However, the Court
concluded that the egg donor could not be the legal mother because she was not a party to the
action. In addition, the Court opined that the contracting man’s girlfriend was not the legal mother
because she was not genetically-related to the children. Although the gestational surrogate was not
genetically-related to the children, the Court held that surrogate was the legal mother of the triplets.
The Court based its decision on the fact that the gestational surrogate carried and bore the children
and took care of them as a natural parent would. The Court emphasized the important role the
birth process plays in the recognition of the mother-child relationship.
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