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August 20, 1997


Appeal from the Order entered April 30, 1996 in the Court of Common Pleas of Northampton County, Civil, No. 1995-C-5893. Before HOGAN, J.

Before: Tamilia, Hudock, And Saylor, JJ. Opinion BY Saylor, J.

The opinion of the court was delivered by: Saylor


Filed August 20, 1997

Phyllis A. Huddleston (Appellant) appeals from the trial court's order dismissing her complaint with prejudice and granting the preliminary objections in the nature of a demurrer filed by the Infertility Center of America (ICA). Having carefully considered the issues presented in this case, together with the relevant legal authorities, we reverse in part, and affirm in part.

The salient facts and procedural history of this case may be summarized as follows. ICA is a surrogacy business operated by a Michigan attorney, Noel Keane. ICA recruits women to be impregnated with the sperm of prospective fathers for the purpose of creating a child. In the typical surrogacy situation, the child is then raised by the sperm-donor father and his wife.

In 1993, in response to ICA's advertisements, Appellant contacted ICA to express an interest in becoming a "surrogate" mother. At approximately the same time, James A. Austin, a single twenty-six year old male, contacted ICA for assistance in becoming a father. Austin paid a fee to ICA for its services, and ICA brought Appellant and Austin together for the purpose of creating a child.

On November 24, 1993, Appellant agreed, in writing, to be artificially inseminated with Austin's sperm, and to release any child born of the surrogacy undertaking to Austin's sole custody. The agreement, entitled "Surrogate Parenting Agreement," was drafted by ICA and provided that Austin would pay for all medical expenses incurred by Appellant in connection with the pregnancy which were not covered by her own medical insurance. Additionally, the contract provided that Austin would pay Appellant a surrogate fee of $13,000.00 upon the child's birth. In the event of a miscarriage or stillbirth, Appellant's fee was to be prorated with reference to the number of days that elapsed from insemination.

Pursuant to the agreement, Appellant was impregnated with Austin's sperm. Thereafter, on December 8, 1994, a baby boy, Jonathan, was born to Appellant in the state of Indiana. On December 9, 1994, Austin, together with an ICA representative, arrived in Appellant's hospital room to take physical custody of Jonathan. At that time, Appellant transferred Jonathan to his sperm-donor father, Austin.

Austin took his newborn son to his residence in Bethlehem, Pennsylvania, where he repeatedly abused Jonathan, causing him to suffer severe head and brain injuries, including "shaken baby syndrome." One month after his birth, on January 8, 1995, Jonathan was admitted to Muhlenberg Hospital, and was transferred shortly thereafter to Children's Hospital in Philadelphia. Jonathan died as a consequence of these injuries on January 17, 1995. *fn1

On April 10, 1995, Appellant filed wrongful death and survival actions in the U.S. District Court for the Eastern District of Pennsylvania seeking damages from ICA on the theories of negligence, breach of fiduciary duty, negligent infliction of emotional distress, and fraud. Thereafter, upon agreement of the parties, the matter was removed from federal court. The case continued in the Northampton County Court of Common Pleas.

On October 2, 1995, ICA filed preliminary objections in the nature of a demurrer based on the lack of a causal connection between the factual allegations contained in Appellant's complaint and her alleged damages. ICA's preliminary objections did not challenge Appellant's standing to bring the wrongful death and survival actions.

In ruling on ICA's preliminary objections, the trial court determined, on its own initiative, that Appellant lacked standing to maintain a wrongful death action under 42 Pa.C.S.A. § 8301 because she did not stand in a "family relation" to the decedent. The court also held that, in any event, Appellant had failed to state a cause of action because the risk that a child would be murdered by his biological father was not legally foreseeable. Thus, ICA's demurrer was granted as to all counts of Appellant's complaint, and this appeal followed.

On appeal, Appellant contends that the trial court erred in granting ICA's demurrer. " demurrer is a preliminary objection that the pleadings fail to set forth a cause of action upon which relief can be granted under any theory of law." Sutton v. Miller, 405 Pa. Super. 213, 221, 592 A.2d 83, 87 (1991) (emphasis in original).

An appeal from an order granting preliminary objections in the nature of a demurrer is subject to plenary review. Morgan v. McPhail, 449 Pa. Super. 71, 73, 672 A.2d 1359, 1360 (1996). In such review:

we accept as true all well-pleaded material facts in the complaint, as well as all inferences reasonably deducible therefrom. Preliminary objections should be sustained only when it appears with certainty that, upon the facts averred, the law will not permit recovery by the plaintiff.

Id. (citations omitted).

"In reviewing the grant of a demurrer, we are not bound by the inferences drawn by the trial court nor are we bound by its Conclusions of law. Moreover, the novelty of a claim or theory, alone, does not compel affirmance of a demurrer." Neff v. Lasso, 382 Pa. Super. 487, 490, 555 A.2d 1304, 1305 (1989), alloc. denied, 523 Pa. 637, 565 A.2d 445 (1989) (citation omitted). Finally, when a doubt exists as to whether a demurrer should be sustained, we will resolve this doubt in favor of overruling it. Snyder v. Specialty Glass Products, Inc., 441 Pa. Super. 613, 618, 658 A.2d 366, 368 (1995).

In this appeal, we must address the following issues:

I. Does Appellant lack standing to maintain the present wrongful death and survival actions?

II. Can a surrogacy agency be held liable for harm which occurs to a child born as a consequence of a surrogacy undertaking based on the agency's failure to exercise reasonable care in ...

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