A Simple Revisit to the Legal Basics – The Importance of a Surrogacy Contract

One of the revolving themes surrounding surrogacy is undoubtedly the importance of having a well-written Surrogacy Contract. Putting formality aside, why is it so important anyway? In California, Intended Parent(s) cannot establish legal parentage unless there is a valid Surrogacy Contract, and there is no other way around it. Surrogacy laws across the United States vary, and often dramatically; the focus of this blog takes us roughly three years back into the past to explore the role played by a Surrogacy Contract in Pennsylvania.

In 2018, a child born through traditional surrogacy (“Claimant”) sought to receive social security benefits based on the earnings record of the “Intended Mother.”[1] However, the “Intended Mother” was not on the Claimant’s birth certificate nor was there a proper Surrogacy Contract. To receive dependent benefits, not surprisingly, a claimant must be a “dependent.” The Social Security Administration (“SCA”) ultimately concluded that the Claimant was not a “dependent” under the Social Security Act.

The SCA provided three reasonings why the Claimant could not be a qualified dependent; as the major focus of this blog, we will explore the SCA’s final reasoning—namely the lack of a valid Surrogacy Contract. In PA, only a few cases touch the realm of surrogacy, its lack of a statutory scheme allows for open interpretation of its direction. However, it was clear from the SCA’s decision that a Surrogacy Contract serves as crucial evidence to prove parentage. The SCA referred to In re Baby S., 128 A.3d 291 (Pa. Super. Ct. 2015) to support its reasoning. In that case, a couple contracted with a surrogate to undergo a surrogacy arrangement. Id. at 298-300. Upon petition for parentage, the Intended Mother attempted to back out claiming that the Surrogacy Contract was invalid under public policy. Id. at 301. The Court disagreed and stated that public policy actually encouraged surrogacy and that a valid Surrogacy Contract could serve as a way to legal parentage. Id. at 301, 306-07.

Going back to our Claimant, there never existed any Surrogacy Contract, and evidence such as joint tax return, cohabitation, etc. were not sufficient proof of legal parentage in the SCA’s opinion. Unfortunately for the Claimant, there was no evidence that he/she was a dependent of the “Intended Mother” in question.

While this case involves traditional surrogacy, the message is equally important for Intended Parent(s) who wish to start an IVF surrogacy. The act of leaving out a parent from the Surrogacy Contract for personal reasons or business decisions could lead to the non-recognition of parentage.

[1] See PR 01005.042 Pennsylvania.