Assisted Reproductive Tech Act Proposed in PA

Do you believe in synchronicity?

On May 24, 2007, I received from the staff of the Joint State Government Commission the printed "Report of the Subcommittee on Assisted Reproductive Technologies" (PDF, 45 pages), released as of May, 2007.

The home page of the JSGC's website now offers a link, labeled "The Proposed Assisted Reproductive Technologies Act", which leads to the Report's introduction & summary, entitled "The Subcommittee and Legislative Process", quoted below.

Let me put the Report into perspective, so you can understand both its importance, and also the "synchronicity" of its issuance now.

As I review the development of events, consider the theory of synchronicity proposed by Swiss psychologist Carl Jung, described simply by Wikipedia:

Synchronicity is the experience of two or more events which occur in a meaningful manner, but which are causally inexplicable to the person or persons experiencing them. The events would also have to suggest some underlying pattern in order to satisfy the definition of synchronicity as originally developed by Swiss psychologist Carl Jung.

Carl Jung coined the word to describe what he called "temporally coincident occurrences of acausal events." * * * Jung introduced the concept in his 1952 paper "Synchronicity -- An Acausal Connecting Principle", though he had been considering the concept for almost thirty years.

It differs from mere coincidence in that synchronicity implies not just a happenstance, but an underlying pattern or dynamic expressed through meaningful relationships or events.

It was a principle Jung felt encompassed his concepts of archetypes and the collective unconscious, in that it was descriptive of a governing dynamic that underlay the whole of human experience and history -- social, emotional, psychological, and spiritual.

Jung believed that many experiences perceived as coincidence were due not merely to chance, but instead, suggested the manifestation of parallel events or circumstances reflecting this governing dynamic. * * *

On July 22, 2004, the Pennsylvania Superior Court issued an opinion in Ferguson v. McKiernan (PDF, 6 pages), 2004 PA Super 289, which derived from a trial court order docketed in Dauphin County, PA. A three-judge panel of the Superior Court framed the issues of the case as follows:

This is an appeal from the Order docketed December 31, 2002, concluding that appellant, Joel L. McKiernan, is the legal father of twin boys born as a result of in vitro fertilization (IVF) and, therefore, is obligated to pay child support.

Appellant argues the trial court erred by (1) ignoring the presumption of paternity of appellee’s then-husband; (2) not giving effect to the contract between the parties relieving appellant of any support obligation; and (3) not concluding appellee is estopped on the basis of fraud from claiming appellant is the father of the children. [Italics added.]

The Superior Court held, in summary:

While the trial court found appellee[mother]’s intentional deception despicable, it nevertheless considered the welfare of the innocent children involved, found appellant to be their legal father, and ordered him to pay child support. We agree.

This is the important language in that opinion that related to assisted reproductive arrangements:

The oral agreement between the parties that appellant would donate his sperm in exchange for being released from any obligation for any child conceived, on its face, constitutes a valid contract.

Based on legal, equitable and moral principles, however, it is not enforceable. See Kesler v. Weniger, 744 A.2d 794, 796 (Pa.Super. 2000) (holding that a parent cannot bargain away a child’s right to support); see also Sams v. Sams, 808 A.2d 206 (Pa.Super. 2002) (holding, inter alia, that while child support Orders and private agreements for support may coexist, a child’s right to support cannot be bargained away by either parent, and any release or compromise is invalid to the extent it prejudices the child’s welfare).

While we agree with the trial court that the oral agreement between the parties is not enforceable, we will nevertheless briefly address the issues raised by appellant. * * *

As discussed above, the court did acknowledge the parties’ agreement, on its face, constituted a legal oral contract. Due to the fact the contract between appellee and appellant bargained away a legal right not held by either of them, however, but belonging to the subject children, the contract was not enforceable. See Kesler, supra.

We agree with the trial court, “[a]lthough we find the [appellee’s] actions despicable and give the [appellant] a sympathetic hue, it is the interest of the children we hold most dear.” Trial Court Opinion, Evans, J., 12/31/02, at 9. There was no error.

[Italics, reparagraphing & links added.]

The PA Superior Court's decision was further appealed by the sperm donor to the Pennsylvania Supreme Court, which heard oral argument by the full Court on May 17, 2005 , as reported in an article entitled "Sperm donor fights order to support 2 children", dated May 20, 2005, by Barbara White Stack, published in the Pittsburgh Post-Gazette.

The PA Supreme Court has not ruled in that appeal to date, more than two years after the full-court oral argument occurred.

And then, on April 30, 2007, the PA Superior Court issued its decision in another sperm donor & parental responsibility case, also deriving in part from a ruling by a trial court in Dauphin County, PA.

The ruling & opinion in Shultz-Jacob v. Jacob & Frampton (16 PDF, pages) attracted national attention. I wrote extensively about this case in my posting "Who's Your Daddy -- A Donor?" (05/11/07, as updated to 05/14/07), which you should read for further details.

One article published about the Jacob case, entitled "Court orders sperm donor to pay support -- Death of father complicates complex case", by Paula Reed Ward, published Friday, May 11, 2007, in the Pittsburgh Post-Gazette, reported:

Cases like these -- and others involving surrogacy and similar issues -- could more easily be settled, all the lawyers said, if the state Legislature would write laws to address them.

Pennsylvania is one of only a handful of states that do not have laws to address the parental rights of sperm donors. * * *

Where's the synchronicity?

On Thursday afternoon, May 10th, after returning to my office, I tossed the York (PA) Dispatch newspaper bearing the headline, "Court: Sperm donor must pay child support", onto my desk, where it landed next to a draft final report, delivered on April 27, 2007 (three days before issuance of the Jacob decision) to members of the JSGC's Subcommittee on Assisted Reproductive Technologies, containing our recommended statute on just such matters.

David Hostetter, Esq., Executive Director of the JSGC, told me that the staff was not aware of the pending issuance of the Jacob decision by the PA Superior Court when Staff Attorney Steve Rehrer, Esq. circulated the draft of the Report for final comments. David has mentioned to me since then, with a smile, about that amazing "coincidence".

Or was it synchronicity?

After nine formal meetings of this Subcommittee, held over a two-year period, while working in relative obscurity & with some wonder about relevancy of such a statute to a wider audience, that newspaper article landed next to our Subcommittee's proposed final report, which, if adopted, would create just such a law to meet the needs of Pennsylvanians for certainty in assisted reproductive technology (ART) situations.

This week, the Subcommittee's finalized Report, including a proposed statute on ART matters, was issued; and it is now available online.

This is the Report's Introduction:

The Joint State Government Commission Subcommittee on Assisted Reproductive Technologies is comprised of representatives from the Commission’s Advisory Committees on Adoption Law, Decedents’ Estates Laws and Domestic Relations Law, as well as practitioners with experience in matters relating to assisted reproductive technologies and establishing the legal parentage of children born as a result of such technologies. In addition, consultants from the Pennsylvania Department of Health were invited to participate in the subcommittee discussions to provide guidance on current departmental practices and procedures.

The impetus for establishing the subcommittee was the introduction of Senate Bill 408 (Printer’s No. 391) of 2005, which provided a statutory framework for surrogate parenting agreements, and the Senate Judiciary Committee public hearing on the legislation on March 14, 2005. During the March 14 public hearing, Senator Stewart J. Greenleaf, the Chair of the Judiciary Committee, requested that the Subcommittee on Assisted Reproductive Technologies review the subject matter and report back to the Senate Judiciary Committee with its recommendations.

Lawrence A. Kalikow was named the chair of the subcommittee, which held its organizational meeting on April 22, 2005. The subcommittee subsequently met nine times to date: June 2005, August 2005, October 2005, December 2005, January 2006, April 2006, September 2006, December 2006 and January 2007. During the meetings, the subcommittee members thoroughly reviewed the Uniform Parentage Act (UPA), statutory law, case law, current Pennsylvania practice and Department of Health procedures.

The subcommittee members agreed on a statutory framework for assisted reproductive technologies in Title 23 of the Pennsylvania Consolidated Statutes (the Pennsylvania Assisted Reproductive Technologies Act), consisting of general provisions and provisions regarding gestational agreements, set forth in this report as Subchapters A, B and C of proposed Chapter 59 of Title 23. The members also recommended that the Pennsylvania Supreme Court amend the Orphans’ Court rules to conform to the provisions of this chapter.

Comments follow the sections of this chapter and explain the statutory provisions. Several comments are derived from the UPA comments and concepts raised in the UPA. The official comments may be used in determining the intent of the General Assembly.

In addition, throughout this chapter, notes explain the source of the provisions and outline similarities and differences with the UPA.

The members are continuing their discussions on provisions relating to children of assisted reproduction and records, which will constitute the foundation of a subsequent report and will add Subchapters D and E to proposed Chapter 59 of Title 23.

In light of the complexity of the issues concerning assisted reproduction, the members recommended a review of the report of the President’s Council on Bioethics titled Reproduction and Responsibility: The Regulation of New Biotechnologies (March 2004).

[Emphasis & links added.]

The members of the Subcommittee who produced the Report & its recommended new law included, in addition to Chair Lawrence A. Kalikow, Esq., the following individuals: Craig B. Bluestein, Esq.; Frank P. Cervone, Esq.; Mitchell E. Chadrow, Esq.; Lisa W. Clark, Esq.; Mary Cushing Doherty, Esq.; Neil E. Hendershot, Esq.; Stephen R. Maitland (now Esq.); Albert Momjian, Esq.; Professor Robert Rains; & Hon. Leonard B. Sokolove. Consultants to the Subcommittee from the PA Department of Health were: Stephanie Michel-Segnor, Esq., & Stephen D. Tompkins, Esq.

Whether there will be a law enacted to address the needs of Pennsylvanians involved in assisted reproductive technology matters now is up to the Pennsylvania Legislature, and then the Governor.

If recent developments indeed do reflect synchronicity in the movement towards a new legal ART framework, then look now at the Legislative & Executive branches for further signs leading to implementation.

Read or download the full Report here.

Update: 06/25/08:

An updated, final report on this subject was issued one year later by the Joint State Government Commission, completing the work of this subcommittee.

For links and details, see: PA EE&F Law Blog posting "JSGC's Final Report on Assisted Reproductive Technologies" (06/25/08).