Leora Cohen Schiff, Cozen O’Connor

The use of uterine transplants avoids many of the legal issues and ambiguity associated with surrogacy. This article addresses the legal questions that arise out of surrogacy agreements, the legal benefits to uterine transplants, and the advances in reproductive medicine including the clinical trial currently at Penn Hospital.

What Is a Uterine Transplant?

A uterine transplant is a procedure in which a donor uterus is transplanted into a recipient with the hope that the recipient will be able to gestate and deliver a child. Uterine transplants allow women who suffer from absolute uterine factor infertility (UFI) the opportunity to experience pregnancy. Women suffering from UFI were either born without a uterus or lost function of their uterus. Approximately 50,000 women in the United States cannot get pregnant due to UFI.

There are situations where women suffering from UFI still have functional fallopian tubes and menstruate normally. In those circumstances, the recipient can contribute an egg that is fertilized in vitro, after which it is inserted into the transplanted uterus. In this manner, the uterine transplant recipient also contributes genetically to the baby. However, many women who suffer from UFI lack fallopian tubes and cannot menstruate. In those circumstances, a donor egg is obtained. But irrespective of the maternal genetic contribution, a uterine transplant recipient is always the intended and gestational mother.

History

Scientists and physicians have been conducting research on uterine transplants since the middle of the 20th century. To date, more than 30 uterine transplants have been performed. The first live birth resulting from a uterine transplant occurred in September 2014 in Sweden. In November 2017, Penn Medicine announced it is conducting the Northeast’s first clinical trial of uterine transplants.

Ethics

Uterine transplants are controversial in part because they involve two debated areas of medical technology: transplants of reproductive organs and assisted reproductive technology. The ethics of uterine transplants are further questioned because uterine transplants are a nonlifesaving procedure, the donor undergoes an extremely risky procedure, there are currently no informed consent guidelines for donors or recipients, immunosuppressant drugs may be dangerous during pregnancy and there are safe alternatives available to achieve parentage such as adoption and surrogacy.

Despite these ethical qualms, there is an increasing interest in the procedure. Many women have described infertility as a major source of distress and are therefore, willing to undertake the risk in order to become pregnant. This procedure, despite its ethical complications and medical risks, has the ability to significantly improve a woman’s quality of life.

Penn is taking steps to address these ethical dilemmas by using deceased donors and requiring all recipients to undergo and extensive medical and psychological screenings to ensure that they are aware of the risks. Moreover, Penn has stressed that there is strong data indicating that expectant mothers who are required to take immunosuppressant drugs due to transplants of other organs (e.g., kidney) often have good outcomes for themselves and their babies.

Despite the above precautions being undertaken by Penn, it is important to acknowledge that adoption and surrogacy arrangements are well-established alternate paths to parenthood. Though these options are at least theoretically available, the processes are often long, expensive and, in the case of surrogacy, legally abstruse.

Surrogacy in Pennsylvania

Although Pennsylvania is known to be a surrogacy-friendly state, the Legislature has thus far failed to provide a clear statutory approach to the issues arising out of surrogacy arrangements. As a result, courts have been forced to “legislate from the bench.”

In the case of J.F. v. D.B., 897 A.2d 1261 (Pa. Super. 2006), an Ohio couple entered into a surrogacy contract with a gestational carrier residing in Pennsylvania. The contract specified that the gestational carrier would not attempt to form a parent-child relationship any child that she might bear and that she would voluntarily relinquish any parental rights to any such child.

Upon a successful implantation, the gestational carrier became pregnant with triplets. Due to the high risk of triplets, she was scheduled for an early caesarian section. However, she did not inform the intended parents until the day of the C-section.

The triplets were placed in the neonatal intensive care unit immediately after delivery after which the intended parents returned to Ohio and began preparing to bring the babies home.

Upon returning to the hospital, the intended parents were told that the gestational carrier took them home. The father filed a complaint for custody and a motion for emergency special relief on Dec. 11, 2003, naming the gestational carrier as defendant. Subsequently, the court issued a consent order, granting temporary legal and physical custody of the triplets to the gestational carrier, with visitation by the father. The consent order preserved the father’s right to assert that gestational carrier lacked standing to pursue custody. On Dec. 16, 2003, the gestational carrier filed an answer and counterclaim for custody. Notably, she did not challenge the validity of the surrogacy contract. On Dec. 18, 2003, the father filed preliminary objections to the gestational carrier’s counterclaim, asserting that gestational carrier had no standing to pursue custody.

The trial court issued an order on Jan. 7, 2005, which awarded primary physical custody to the gestational carrier, granted partial custody/visitation to the father, and ordered that legal custody be shared between the father and gestational carrier. The father appealed the custody order.

On appeal, the court overturned the order of the trial court and found that the gestational carrier did not have standing as she was a nonparent third party who took the children home from the hospital without the father’s permission. Moreover, the Appellate Court found that the lower court failed to provide sufficient evidence or a reasoned basis for its decision to void the surrogacy contract and name the gestational carrier as the legal mother.

In a more recent case, the Pennsylvania Superior Court upheld a Montgomery County trial court decision stating that a surrogacy contract between intended parents and a gestational carrier was binding and enforceable. In that case, In re Baby S., 128 A.3d 296 (Pa. Super. 2015), a couple entered into a surrogacy contract with a gestational carrier residing in Pennsylvania. The surrogacy contract specifically stated that the intended parents were to be named as “mother” and “father” on the child’s birth certificate. As the pregnancy progressed, the intended parents began to experience marital difficulties. The intended mother refused to sign a pre-birth order, which would have designated herself and the intended father as the parents on the child’s birth certificate. As a result of the intended mother’s refusal to abide by the surrogacy contract, the gestational carrier filed a petition for assisted conception birth registration and to establish parentage while pregnant with the child.

When the child was born, the birth certificate listed the gestational carrier as mother and no name appeared for the father. Shortly thereafter, the intended mother filed a response to the gestational carrier’s petition. After a hearing, the trial court entered an order declaring the intended parents as the legal parents. The intended mother appealed stating that the surrogacy contract was unenforceable. She argued that because the Pennsylvania legislature had failed to enact any law recognizing the validity of surrogacy agreements, they were void under public policy and thus she should not be bound by the contract.

The Appellate Court upheld the trial court’s decision finding that the contract was enforceable. The court relied on the 2007 Supreme Court case of Ferguson v. McKiernan, 940 A.2d 1236 (2007), in which the court upheld an agreement between a mother and a sperm donor, where the sperm donor agreed to surrender all parental rights in return for his exemption from any support obligations. The Ferguson case specifically addressed the lack of legislative directive stating that the “absence of a legislative mandate coupled to the constantly evolving science of reproductive technology” does not suggest that such agreement “violates a “dominant public policy” or “obvious ethical or moral standards,” Ferguson v. McKiernan at 1248. In addition to relying on Ferguson, the court stressed the role of intent as the child would not have been born but for the intention of the intended parents.

Pennsylvania courts have upheld surrogacy contracts as valid. However, even with the protection of a valid contract, couples entering into surrogacy agreements do not have the control they would otherwise have in a traditional pregnancy. For example, even if a surrogacy contract addresses termination and selective reduction, the intended parents cannot force the surrogate to comply, see Roe v. Wade, 410 U.S. 113 (1973). Subsequent court decisions have held that the right to terminate a pregnancy rests with the pregnant woman and consequently, the surrogate, not the intended parents.

Conclusion

In addition to enabling a woman to experience pregnancy, uterine transplants avoid many of the legal issues and ambiguity associated with surrogacy. Though not without risk, the ability to grant parents full control over their gestation, may make uterine transplants a popular alternative to surrogacy once the science has advanced to the degree that these procedures have a high success rate.

Leora Cohen Schiff practices in the family law group at Cozen O’Connor’s Philadelphia office. She earned her J.D. from Georgetown University Law Center and her undergraduate degree in political science from Rutgers University. Prior to joining Cozen O’Connor, she clerked for the Judge Guy P. Ryan, J.S.C., Family Division of the Superior Court of New Jersey.