By Melissa B. Brisman, Esq., Reproductive Lawyer, LLC
Fertility Today Magazine, July/August 2005

The Commonwealth of Pennsylvania continues to be a breeding ground for setting groundbreaking precedents in the ever growing field of reproductive law.

Since 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.

In a 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.

Shortly 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.

These 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 communities.

When 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.

Melissa Brisman practices reproductive law in Park Ridge, New Jersey. She is licensed to practice law in New Jersey, New York, Massachusetts, and Pennsylvania.