Surrogacy bill puts children in harm’s way
Last weekend, a social post initially celebrating a child’s first year of life took a dark turn when several social media users identified that one of the child’s legal parents, Brandon Mitchell, is a registered sex offender in the state of Pennsylvania. Despite the fact that he would never be eligible to adopt a child, foster a child, and would have even been prohibited by the lower standards required to coach youth sports in Pennsylvania, Mitchell was able to obtain full parental rights, along with his partner Logan Riley, through a workaround: paying a woman for commercial gestational surrogacy.
Through surrogacy, a couple or individual can commission a child using their own gametes, donor gametes, or both, and obtain full parental rights even if they have no biological relationship to the child. The Pennsylvania legislature is currently considering a bill that would expand legal surrogacy in the state, with no protections to make sure that pedophiles like Mitchell cannot obtain children in exchange for money. If passed, this bill would give children conceived via assisted reproductive technologies (ART) fewer rights and protections than their naturally conceived peers.
Brandon Mitchell was fired from his job as a high school chemistry teacher at Downingtown West High School in 2015 when he was caught soliciting a minor who was a student of his for explicit images and to receive sexual favors once the student graduated. When police executed a search warrant of his electronic devices, they recovered hundreds of sexually explicit videos of the minor on Mitchell’s laptop. He was charged with felony child pornography possession and corruption of a minor. He was released on parole after serving two months of his 23-month sentence.
A decade later, he and his partner launched a since-deleted GoFundMe asking for help paying for the creation of a child through surrogacy. Under Pennsylvania law, Mitchell’s crimes prohibit him from adopting. But no law prohibited Mitchell from gaining parental rights to an unrelated child through surrogacy. The bill in Pennsylvania, already passed by the House earlier this year, continues that horrible mistake by allowing non-biological adults to obtain children without the safeguards Pennsylvania provides for kids in the adoption and foster care context, such as criminal background checks, sex-abuse clearances, and a home study.
Commercial gestational surrogacy, where a surrogate mother is paid and uses either the commissioning parent’s or a donor’s egg instead of her own, is considered legal in Pennsylvania under unpublished case law upholding a gestational surrogacy contract. Now, the Pennsylvania legislature is considering a bill that would significantly expand and codify the practice. HB 350, the Uniform Parentage Act, would allow not just commercial gestational surrogacy, but also commercial genetic surrogacy — where a surrogate mother is paid to give birth to and relinquish rights to a child who is her full biological offspring.
The method of a child’s conception should never determine what rights and protections she has. A child born via assisted reproductive technologies deserves the same level of protection against predators as their naturally conceived peers. And yet, in the world of surrogacy, this is not the case. While profit payments to birth parents are strictly prohibited in cases of adoption, the surrogate birth mother of an ART-conceived child can and does receive direct payment for relinquishing parental rights. Under the Uniform Parentage Act, this would be expanded such that a woman can be offered profit payments for signing her parental rights away even when the child is fully genetically related to her.
A naturally conceived child who is placed for adoption would never be sent home with an unvetted adult. And yet, as we have seen from this case and others, an ART-conceived child who is commissioned via surrogacy can be sent home with a registered child sex offender who is not allowed to adopt, foster, or even coach children.
The House has already passed the Uniform Parentage Act. If the Senate does the same, more children will face the danger of a commercialized industry that will coerce mostly lower-income women to sell their unborn children for profit, and that does not even bother to confirm that commissioning parents are not registered sex offenders.
Judge Cheryl Lynn Allen served as the first Black woman on the Pennsylvania Superior Court and served as a trial judge in both Family and Criminal Court until her election to the Pennsylvania Superior Court in 2007. She is currently retired Of Counsel with the Pennsylvania Family Council. Patience Sunne is the Engagement Director at Them Before Us, a nonprofit dedicated to defending children’s rights. She lives in Iowa with her husband.
