Appeal from the Decree April 2, 2008, In the Court of Common Pleas of Allegheny County, Orphans' Court Division at No. 02-06-04655.
The opinion of the court was delivered by: Popovich, J.
BEFORE: KLEIN, POPOVICH, and FITZGERALD*fn1, JJ.
¶ 1 Appellants, gestational carrier (G.S., along with her husband, B.S.) and birth parent (C.-H.L., along with his life partner, T.J.P.) of twins (I.L.P. and I.L.P.),*fn2 appeal the Decree of the Court of Common Pleas of Allegheny County, Orphans' Court Division, entered on April 2, 2008, denying Appellants' petition requesting correction of the birth registration of the twins. We reverse.
¶ 2 The procedural history of this case was recited by the trial court as follows:
On July 28, 2006, after consideration of [Appellants'] Joint Petition ("2006 Petition"), th[e Orphans'] Court issued a Decree ("Decree") determining that [Appellant] C[.]-H[.]L[.] ("L[.]") was the father and sole parent [n.1] of the unborn twin Children ("Children") in this matter. The Decree directed that any certified copies of Children's birth records reflect [Appellant/C.-H.]L[.]'s parentage. The Children were born five weeks later on September 7, 2006.
It is important to understand that there is no statute or regulation regarding gestational carriers[, of which Appellant G.S. was in this case for the birth parent/Appellant C.-H.L]. Th[e Orphans'] Court's only direction in gestational carrier matters is an October 2, 2003 Pennsylvania Department of Health Letter ("Letter") that sets forth the policy and procedures of that department for the registration of an assisted conception birth. The Letter acknowledges what th[e Orphans'] Court is well aware of: that "the Vital Statistics law and associated regulations do not specifically address assisted conception." In other words, the law has not yet caught up with the science that makes conception by in vitro fertilization [.] using a gestational carrier possible. The Letter provides a mechanism to ensure a child born of a gestational carrier has a genetic parent's name on a birth record.
On April 2, 2008, [Appellants] presented a Joint Petition for Amended Decree ("2008"). They averred that [Appellant C.-H.]L[.], a Taiwanese citizen, wanted the children to be joint U.S.-Taiwanese citizens. [Appellants] state that because Children are the product of a Taiwanese citizen and a woman married to someone else, Taiwanese authorities would not grant citizenship unless [Appellant] Gestational Carrier voluntarily requests that the [Orphans'] Court terminate her parental rights, and that her husband, [Appellant] B[.]S[.] ("Gestational Carrier's Husband"), disavow he is the biological father and also requests termination of his parental rights. Th[e Orphans'] Court denied the 2008 Petition, stating that sufficient information regarding this matter was contained in the original 2006 Petition and Decree which followed [.]. _______________________
[n.1] The eggs were from an anonymous donor. [Appellant]
G[.]S[.] ("Gestational Carrier") had agreed to carry embryos in her womb, provide them with nutrition during pregnancy, and deliver Children upon birth.
Orphans' Court Opinion, 5/28/08, at 1-2 n.1. Thereafter, Appellants filed a timely notice of appeal on May 2, 2008, which was followed by compliance with the Orphans' Court's May 6, 2008, Pa.R.A.P. 1925(b) order raising the issue: Did the Orphans' Court err in denying Appellants "request [for] a restatement of the situation created by their successful petition to correct birth registration, to satisfy the specific language which is required by the Government of Taiwan to recognize [Appellant C.-H.L.'s] rights[, . and] make a determination that the [gestational] carrier and her husband have no rights to the children."*fn3 See Appellants' "Concise Statement of Matters Appealed," 5/21/08; Record No. 5.
¶ 3 All parties concede this is an "unusual case" and is without precedent in this jurisdiction. Appellant G.S. (with the consent of her husband, Appellant B.S.) agreed to serve as the gestational carrier for a baby to be conceived using an anonymous donor egg and the sperm of Appellant C.-H.L., who is the registered domestic partner under New Jersey law of Appellant T.J.P. The in vitro fertilization was successful and resulted in the birth of twin girls, who are now approximately two years old.
¶ 4 After conception of the twins, a joint petition was filed with the Orphans' Court of Allegheny County to correct the birth records pursuant to 20 Pa.C.S.A. § 711(9). The Orphans' Court signed an order to have the birth certificates of the twins reflect their parentage; to-wit:
AND NOW, this 28th day of July, 2006, upon consideration of the foregoing Petition, Amended Petition, and the Affidavits, Acknowledgements and Stipulation attached thereto, it is the determination of this Court that [Appellant C.-H.L.] is the father and sole parent of the twin children anticipated to be born ...