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The Proposed Pennsylvania Assisted Reproductive Technologies Act

    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 eleven times: in June 2005, August 2005, October 2005, December 2005, January 2006, April 2006, September 2006, December 2006, January 2007, September 2007 and November 2007. During its deliberations, the subcommittee thoroughly reviewed the Uniform Parentage Act, statutory law, case law, current Pennsylvania practice and Department of Health procedures.

By May 2007, the subcommittee had reached consensus on a statutory framework for assisted reproductive technologies in the Domestic Relations Code (Title 23 of the Pennsylvania Consolidated Statutes, or “23 Pa.C.S.”). At that time, the subcommittee had completed its consideration of issues concerning gestational agreements (so-called surrogacy arrangements). Accordingly, a report was published in May 2007 containing the recommendations of the subcommittee, which included major provisions of the proposed Assisted Reproductive Technologies Act under 23 Pa.C.S. Chapter 59. As structured, the May 2007 report included proposed Subchapters A (general provisions), B (gestational agreements and prepregnancy validation process) and C (gestational agreements and legal parentage through postpregnancy process) of 23 Pa.C.S. Chapter 59. Comments followed the sections of the proposed act and explained the statutory provisions. Several comments were derived from the Uniform Parentage Act comments and concepts raised in the Uniform Parentage Act. In addition, notes throughout the proposed act explained the source of the provisions and outlined similarities and differences with the Uniform Parentage Act.

In its May 2007 report, the subcommittee also recommended that the Pennsylvania Supreme Court amend the Orphans’ Court rules to conform to the provisions of 23 Pa.C.S. Chapter 59. In light of the complexity of the issues concerning assisted reproduction, the subcommittee further recommended a review of the report of the President’s Council on Bioethics titled Reproduction and Responsibility: The Regulation of New Biotechnologies (March 2004).

The May 2007 report noted that the subcommittee was continuing discussions on provisions relating to children of assisted reproduction and to records, which would be added as Subchapters D and E of the proposed act and which would constitute the foundation of a subsequent report.

In September and November 2007, the subcommittee completed its review of proposed Subchapters D and E and resolved the outstanding issues regarding the implementation of the subchapters. The subcommittee agreed that a new report should be published containing the entire proposed Assisted Reproductive Technologies Act (Subchapters A through E).

This report, therefore, reflects the latest recommendations of the subcommittee -- a fully integrated proposed Assisted Reproductive Technologies Act. As was the case in the May 2007 report, notes and comments follow the statutory provisions. Official comments may be used to construe a statute and determine the intent of the General Assembly. This report also contains a summary of the statutory recommendations and a detailed table of contents for the statutory provisions. Following the proposed statutory provisions are conforming amendments to §§ 711 and 713 of the Probate, Estates and Fiduciaries Code (Title 20 of the Pennsylvania Consolidated Statutes, or “20 Pa.C.S.”) and transitional language (applicability and effective date provisions).

As a result of the continued discussions and the integration of the additional subchapters into the proposed act, technical amendments are made to several of the provisions published in the May 2007 report. In addition, the notes previously published are rewritten and expanded to include more precise information.