J.F. v. D.B.
| Decision Date | 21 April 2006 |
| Citation | 897 A.2d 1261 |
| Parties | J.F., Appellant, v. D.B., Appellee. D.B., Appellee, v. J.F., Appellant. D.B. v. J.R. v. J.F. Appeal of: J.R. Appeal of: J.F. |
| Court | Pennsylvania Superior Court |
BEFORE: LALLY-GREEN, TODD, and McCAFFERY, JJ.
OPINION BY McCAFFERY, J.:
¶ 1 Appellant, J.F. ("Father"), asks us to determine whether the trial court erred in holding that D.B. ("gestational carrier") has standing to seek custody of the triplet boys she carried and delivered, after having taken them from the hospital against Father's wishes when they were eight days old. In a companion case, an action initiated by gestational carrier, Father appeals from the trial court's order terminating the parental rights of J.R. ("egg donor").1 Following an exhaustive review of the record, the briefs of the parties and the pertinent law, we decline to comment on the validity of surrogacy contracts, either specifically in this case or generally in this Commonwealth. That task is for the legislature. Our holding today is limited to our conclusion that gestational carrier lacked standing to seek custody or challenge Father's custody of the triplets. As a result, gestational carrier also lacked standing to seek termination of egg donor's parental rights. Accordingly, we vacate the order of the trial court and remand the matter with directions.
¶ 2 The unique facts and procedural history underlying these appeals are as follows. Father is a math professor and department chair at Cleveland State University in Cleveland, Ohio. He lives with E.D., who was a practicing dentist and is now retired. Father and E.D., who live together in a home they built in Ohio, are in a long-term relationship and they want to have children. E.D. is a widow,2 with two grown children: a daughter, who is married with four children, and a son.3 (Notes of Testimony ("N.T.") Custody Trial, 7/9/04, at 112-15; R.R. at 561a-564a). Father has no children. After enduring infertility treatments and learning that E.D. was incapable of conceiving any more children, the couple considered other options. Although willing, E.D.'s daughter was incapable of serving as a surrogate for the couple.
¶ 3 Father and E.D. eventually contacted Surrogate Mothers, Inc. ("SMI"), a private surrogacy agency in Indiana. The couple entered into an agreement with SMI listing Father as "Biological Father or Adoptive Father", E.D. as "Biological Mother, Adoptive Mother, or Partner" and the couple as "Client". (Agreement Between Client and SMI, Father's Complaint for Sole Custody, Exhibit A; R.R. at 22a-27a). The Agreement provided that Steven C. Litz, Esquire, director of SMI, would "prepare all legal papers incidental to the legal processes involved" and "represent Client in all of the proceedings contemplated by this agreement". (Id. at 2-3; R.R. at 23a-24a).
¶ 4 SMI matched the couple with gestational carrier, a married resident of Pennsylvania with three children of her own, and egg donor, a single woman residing in Texas. E.D. met gestational carrier in April 2002. In August 2002, Father, egg donor, gestational carrier and her husband executed a surrogacy contract ("the Contract" or "the Surrogacy Contract") prepared by Attorney Litz. By virtue of the Contract Father agreed, inter alia, to pay gestational carrier the sum of $15,000.00 for a single birth, $20,000.00 for multiple births, plus medical expenses, travel expenses, and life insurance for the duration of the pregnancy. (Contract, Father's Complaint for Sole Custody, Exhibit B; R.R. at 28a-39a). Gestational carrier agreed, inter alia, that she would not attempt to form a parent-child relationship with any child or children she might bear; that she would voluntarily relinquish any parental rights to any such child or children; and Father would not be responsible for any lost wages, childcare expenses for existing children, or any other expenses not expressly set forth in the Contract. (Id. at 1, 3; R.R. at 28a, 30a). In the event that custody was somehow awarded to either gestational carrier or egg donor, each agreed to indemnify Father for any and all monies paid for child support, and reimburse him for any and all monies paid to either one pursuant to the Surrogacy Contract. (Id. at 4; R.R. at 31a). Father agreed to assume legal responsibility for any child or children of his, born pursuant to the Contract, and the Contract also provided that any such child or children should be placed in the sole custody of E.D. if Father were to die before the birth of the child or children. (Id. at 5, 32a). A portion of the Surrogacy Contract contained a Release and Hold Harmless Agreement, which provided as follows:
[Gestational carrier] and [egg donor] will undergo a procedure whereby eggs or ovum from [egg donor] will be combined with sperm from [Father], and the resulting embryo or embryos will be transferred to [gestational carrier] for the purpose of carrying [Father's] child to term. Upon the birth of the child, [gestational carrier] and/or [egg donor] will surrender any custody rights to the child to [Father]....
(Id. at 9; R.R. at 36a). E.D. sold her dental practice in 2002 in anticipation of being a "stay at home mother". (N.T. Standing Hearing, 1/29/04, at 7; R.R. at 133a; Hokaj Deposition Testimony ("D.T."), 8/10/04, at 78; R.R. at 989a).4
¶ 5 Pursuant to the Surrogacy Contract, the parties underwent extensive medical and psychological testing. Finally, in April 2003, three of egg donor's eggs, fertilized in vitro with Father's sperm, were implanted in gestational carrier. Father and E.D., the intended parents, were present for this procedure as well as four weeks later for the sonogram confirming that gestational carrier was carrying triplets. (N.T. Standing Hearing, 3/11/04, at 45, 47; R.R. at 339a, 341a). Intended parents also attended gestational carrier's first few doctor's appointments in Erie, Pennsylvania, but were later told by gestational carrier not to come to any more appointments. Thereafter, E.D. called to check on gestational carrier and the triplets she was carrying, apparently more often than gestational carrier liked. She asked E.D. not to call so often, and E.D. complied, as she had complied with the request to stop going to the doctor's appointments. (Id. at 87; R.R. at 381a). When it became necessary for gestational carrier to go on bed rest on her doctor's advice, she requested additional money for that period of time. Even though they were not required to do so by the contract, intended parents sent gestational carrier an additional $1,000 for each of the four months she was on bed rest.
¶ 6 As the triplets grew, the doctor became concerned that gestational carrier would go into labor prematurely. Gestational carrier scheduled a caesarean delivery ("C-section") at Hamot Medical Center ("Hamot" or "the hospital") in Erie, Pennsylvania, for November 19, 2003, approximately thirty-five (35) weeks into the pregnancy.5 Although E.D. expressed her desire to be in the delivery room for the birth, gestational carrier wanted her husband there instead, and so gestational carrier did not tell intended parents about the scheduled C-section. (Id. at 57-58; R.R. at 351a-352a). Gestational carrier knew the triplets' gender, but intended parents chose to wait to find out until the birth. (Id. at 66-67; R.R. at 360a-361a).
¶ 7 On the morning of November 19th, gestational carrier called SMI to inform the agency that she would be undergoing a C-section later that day. SMI called intended parents and informed them of this fact. The triplets were, indeed, born on that date, but their early delivery caused minor medical problems that warranted their placement in Hamot's neonatal intensive care unit ("NICU"). Intended parents, who had only learned about the birth on that same day, drove from Ohio to Erie that evening to visit the babies.6
¶ 8 Attorney Litz had informed Paul Huckno, Hamot's Risk Manager, that a court order naming Father and E.D. as the parents would be forthcoming; however, Hamot did not receive such order. (N.T. Standing Hearing, 1/29/04, at 86, 88; R.R. at 212a, 214a). As a result, the hospital insisted that intended parents have permission from gestational carrier to see the triplets in the NICU, which gestational carrier gave. In addition, gestational carrier signed a form satisfactory to Hamot that allowed Hamot to discharge the triplets to Father. (Id. at 90; R.R. at 216a). On the night of the triplets' birth, intended parents were able to hold only one son, as the other two were on oxygen.
¶ 9 Over the next few days, while the children were being monitored and cared for by Hamot doctors and nurses in the NICU, intended parents purchased a minivan, car seats, toys, and clothing, all for the care and benefit of the triplets. E.D. made repeated telephone calls to their insurance company to secure medical insurance for the infants and arrange for apnea monitors, which the babies required before they could be discharged from the hospital. E.D. spoke with gestational carrier on November 20th and the 21st. (N.T. Standing Hearing, 3/11/04, at 62-63; R.R. at 356a-357a).7 E.D. also telephoned Hamot at least once a day, often more frequently, to speak with the babies' doctors, NICU nurses, and social services personnel.8 Hamot discharged gestational carrier on Saturday, November 22nd, and she went home. Prior to and at that time, gestational carrier claimed to have had no intention of taking the triplets home with her. She also knew that E.D. was planning to adopt them.9 (Id. at 61-62, 94; R.R. at 356a-357a, 388a).
¶ 10 Originally, intended parents were scheduled to "nest" with the triplets on Sunday, November 23rd, to prepare to bring them home.10 However, as...
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