In Re ILP

965 A.2d 251, 2009 WL 130279
CourtSuperior Court of Pennsylvania
DecidedJanuary 21, 2009
Docket786 WDA 2008
StatusPublished

This text of 965 A.2d 251 (In Re ILP) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re ILP, 965 A.2d 251, 2009 WL 130279 (Pa. Ct. App. 2009).

Opinion

965 A.2d 251 (2009)

In re I.L.P. and I.L.P. Joint Petition on Assisted Conception Birth Registration.
Appeal of C.-H.L. and T.J.P., G.S. and B.S.

No. 786 WDA 2008.

Superior Court of Pennsylvania.

Argued September 24, 2008.
Filed January 21, 2009.

Hilary A. Kinal, Ambridge, for B.S. and G.S., appellants.

BEFORE: KLEIN, POPOVICH, and *252 FITZGERALD[*], JJ.

OPINION BY POPOVICH, J.:

¶ 1 Appellants, gestational carrier (G.S., along with her husband, B.S.) and birth parent (C.-H.L., along with his life partner, T.J.P.) of twins (I.L.P. and I.L.P.),[1] appeal the Decree of the Court of Common Pleas of Allegheny County, Orphans' Court Division, entered on April 2, 2008, denying Appellants' petition requesting correction of the birth registration of the twins. We reverse.

¶ 2 The procedural history of this case was recited by the trial court as follows:

On July 28, 2006, after consideration of [Appellants'] Joint Petition ("2006 Petition"), th[e Orphans'] Court issued a Decree ("Decree") determining that [Appellant] C[.]-H[.]L[.] ("L[.]") was the father and sole parent [n. 1] of the unborn twin Children ("Children") in this matter. The Decree directed that any certified copies of Children's birth records reflect [Appellant/C.H.]L[.]'s parentage. The Children were born five weeks later on September 7, 2006.
[n. 1] The eggs were from an anonymous donor. [Appellant] G[.]S[.] ("Gestational Carrier") had agreed to carry embryos in her womb, provide them with nutrition during pregnancy, and deliver Children upon birth.
It is important to understand that there is no statute or regulation regarding gestational carriers[, of which Appellant G.S. was in this case for the birth parent/Appellant C.-H.L]. Th[e Orphans'] Court's only direction in gestational carrier matters is an October 2, 2003 Pennsylvania Department of Health Letter ("Letter") that sets forth the policy and procedures of that department for the registration of an assisted conception birth. The Letter acknowledges what th[e Orphans'] Court is well aware of: that "the Vital Statistics law and associated regulations do not specifically address assisted conception." In other words, the law has not yet caught up with the science that makes conception by in vitro fertilization [ ... ] using a gestational carrier possible. The Letter provides a mechanism to ensure a child born of a gestational carrier has a genetic parent's name on a birth record.
On April 2, 2008, [Appellants] presented a Joint Petition for Amended Decree ("2008"). They averred that [Appellant C.H.]L[.], a Taiwanese citizen, wanted the children to be joint U.S.-Taiwanese citizens. [Appellants] state that because Children are the product of a Taiwanese citizen and a woman married to someone else, Taiwanese authorities would not grant citizenship unless [Appellant] Gestational Carrier voluntarily requests that the [Orphans'] Court terminate her parental rights, and that her husband, [Appellant] B[.]S[.] ("Gestational Carrier's Husband"), disavow he is the biological father and also requests termination of his parental rights. Th[e Orphans'] Court denied the 2008 Petition, stating that sufficient information regarding this matter was contained in the original 2006 Petition and Decree which followed[...].

Orphans' Court Opinion, 5/28/08, at 1-2 n. 1. Thereafter, Appellants filed a timely notice of appeal on May 2, 2008, which was followed by compliance with the Orphans' Court's May 6, 2008, Pa.R.A.P.1925(b) order raising the issue: Did the Orphans' Court err in denying Appellants "request *253 [for] a restatement of the situation created by their successful petition to correct birth registration, to satisfy the specific language which is required by the Government of Taiwan to recognize [Appellant C.-H.L.'s] rights[, ... and] make a determination that the [gestational] carrier and her husband have no rights to the children."[2]See Appellants' "Concise Statement of Matters Appealed," 5/21/08; Record No. 5.

¶ 3 All parties concede this is an "unusual case" and is without precedent in this jurisdiction. Appellant G.S. (with the consent of her husband, Appellant B.S.) agreed to serve as the gestational carrier for a baby to be conceived using an anonymous donor egg and the sperm of Appellant C.H.L., who is the registered domestic partner under New Jersey law of Appellant T.J.P. The in vitro fertilization was successful and resulted in the birth of twin girls, who are now approximately two years old.

¶ 4 After conception of the twins, a joint petition was filed with the Orphans' Court of Allegheny County to correct the birth records pursuant to 20 Pa.C.S.A. § 711(9). The Orphans' Court signed an order to have the birth certificates of the twins reflect their parentage; to-wit:

AND NOW, this 28th day of July, 2006, upon consideration of the foregoing Petition, Amended Petition, and the Affidavits, Acknowledgements and Stipulation attached thereto, it is the determination of this Court that [Appellant C.-H.L.] is the father and sole parent of the twin children anticipated to be born [... ] through [Appellant G.S.,] acting as embryo carrier for [Appellant C.-H.L.]
It is hereby Ordered and Decreed that any certified copies of the birth records of said children shall reflect the sole parentage of [Appellant C.-H.L.] whenever parentage appears on such documents. [...].

Decree, 7/28/06, Volume 1151, Page 13. Of primary consequence to Appellants' appeal is the failure of the Orphans' Court to make any mention of the gestational carrier in the above-stated order of July 28, 2006, which absence is an impediment to the twins obtaining dual (Taiwanese/American) citizenship[3] without clarification to *254 the satisfaction of the Taiwanese government that the (parental) rights of the gestational carrier and her husband have been terminated by the Court of Common Pleas of Allegheny County, Orphans' Court Division.[4] As a result, on April 2, 2008, Appellants filed a joint petition seeking to have the Orphans' Court amend its July 28, 2006, decree to indicate that the gestational carrier and her husband had waived and/or terminated "any claim" to the children. The Orphans' Court had reservations in issuing an amended order terminating the parental rights of Appellants G.S. and B.S. to placate the Taiwanese Ministry of Justice's interpretation of its civil law regarding parental rights to children born out of wedlock: Birthing rights *255 of gestational carrier and, if married, her husband needed to be terminated by court order in advance of natural father/Appellant C.-H.L. securing Taiwanese citizenship for children born out of wedlock. See note 4, supra.

¶ 5 We agree with the Orphans' Court that in this Commonwealth there is no law that accords standing to a surrogate with no biological connection to the child. See J.F. v. D.B., 897 A.2d 1261 (Pa.Super.2006), appeal denied, 589 Pa. 739, 909 A.2d 1290

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Tallarico v. BELLOTTI
200 A.2d 763 (Supreme Court of Pennsylvania, 1964)
Hughes v. Bailey
195 A.2d 281 (Superior Court of Pennsylvania, 1963)
J.F. v. D.B.
909 A.2d 1290 (Supreme Court of Pennsylvania, 2006)
Matter of Terwilliger
450 A.2d 1376 (Superior Court of Pennsylvania, 1982)
In Re Shahan
631 A.2d 1298 (Superior Court of Pennsylvania, 1993)
Pope v. Dascher
240 A.2d 518 (Supreme Court of Pennsylvania, 1968)
Gibson Estate
34 A.2d 159 (Superior Court of Pennsylvania, 1943)
Estate of Harriet B. Laverelle
101 Pa. Super. 448 (Superior Court of Pennsylvania, 1930)
J.F. v. D.B.
897 A.2d 1261 (Superior Court of Pennsylvania, 2006)
J.F. v. D.B.
941 A.2d 718 (Superior Court of Pennsylvania, 2008)
In re I.L.P.
965 A.2d 251 (Superior Court of Pennsylvania, 2009)
McGowin v. Remington
12 Pa. 56 (Supreme Court of Pennsylvania, 1849)
Black's v. Black's Executors
34 Pa. 354 (Supreme Court of Pennsylvania, 1859)
Appeal of the Odd Fellows Savings Bank
16 A. 606 (Supreme Court of Pennsylvania, 1889)
Binenstock Trust
190 A.2d 288 (Supreme Court of Pennsylvania, 1963)
Swartzwelder v. Edmonds
331 A.2d 224 (Commonwealth Court of Pennsylvania, 1975)
Petition to Amend Birth Record of S. Z.
5 Pa. D. & C.2d 786 (Philadelphia County Orphans' Court, 1956)

Cite This Page — Counsel Stack

Bluebook (online)
965 A.2d 251, 2009 WL 130279, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-ilp-pasuperct-2009.