Pennsylvania State Representative Aaron Bernstine recently announced plans to close a gap in the state’s child protection laws. Unlike adoption and foster care, surrogacy currently allows people who are listed on the “sex offender” registry to become legal parents without background checks or judicial review. His bill targets the person who is the biological parent (sperm or egg donor). After a high-profile case where a person with a Tier I sex offense conviction involving a minor gained legal parentage through surrogacy, Bernstine’s proposed bill would require background checks and child abuse clearances for all intended surrogacy parents and would prevent people on the registry from achieving legal parenthood through surrogacy.
A Similar Push in the Senate
On August 15, 2025, Senator Doug Mastriano introduced Senate Bill 968 (SB 968), which would create an entirely new Chapter 59: “Gestational Carrier Agreements” in Title 23 of the Pennsylvania Consolidated Statutes. While Bernstine’s bill will probably focus narrowly on blocking people on the registry from surrogacy, SB 968 casts a wider net, regulating nearly every gestational carrier arrangement in the state. The bill:
- Requires comprehensive background checks—including PA State Police, FBI, child abuse history, and state/national sex offender registry checks—for all intended parents, carriers, and adult household members, whether they live in Pennsylvania or out of state.
- Mandates court review of those checks before granting prebirth or postbirth parentage orders, and allows the court to deny parentage, order supervision, or refer to child protective services if concerns arise.
- Establishes civil fines (up to $10,000) for noncompliance and makes falsifying documentation a criminal offense.
- Gives the Department of Human Services audit authority and empowers the Attorney General or county district attorneys to enforce the law.
The Child Protection Rationale
Bernstine frames his bill as necessary to ensure that surrogacy arrangements do not unwittingly place children in the custody of people with a record of child sexual abuse. Mastriano’s SB 968 uses similar reasoning but applies the same heightened checks to all parties in a surrogacy arrangement, regardless of prior criminal history. Proponents argue that this closes loopholes that could be exploited by out-of-state participants seeking to avoid stricter laws elsewhere.
Another point, while 50-66% of those who engaged in intrafamilial (incest) sexual abuse of minors have also abused outside the family, there is no evidence of the reverse. Extrafamilial and intrafamilial offenders generally have different motivations, behaviors and psychological issues. Even among adolescent offenders, sibling incest offenders display unique characteristics. So these bills, carried to the absurd conclusion, suggest that someone who has abused minors outside of his/her family would then use surrogacy to create their next victim … reductio ad absurdum.
Distinguishing Surrogacy from Adoption and Foster Care
A key concern with both proposals is that they conflate adoption and foster care with reproduction, which are legally and ethically distinct processes. Adoption and foster care involve placing an unrelated child into someone’s care; because the state is acting in loco parentis (in place of a parent), it applies heightened scrutiny, including background checks and home studies, before transferring care.
Surrogacy, particularly gestational surrogacy, is often a matter of reproduction, with one or both intended parents being biologically related to the child. The Supreme Court has recognized strong constitutional protections for the right to create and parent one’s own biological child, making the legal and ethical interests distinct from adoption or foster care. In Santosky v. Kramer (1982), the Court affirmed that the “fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents”—underscoring the unique rights and protections afforded to biological parents.
Why Do People Choose Surrogacy?
People choose surrogacy for a variety of personal and often deeply meaningful reasons. Many intended parents turn to surrogacy due to infertility or because pregnancy is medically risky or impossible. Surrogacy provides a path to parenthood for people with uterine conditions, a history of cancer, or health issues that preclude pregnancy. It is also a vital option for same-sex couples and single individuals who wish to have biological children. For these individuals and families, surrogacy can represent the only opportunity to build a family of their own.
Legal and Constitutional Concerns
While the motivations behind these bills are clear, they face significant legal and constitutional issues. The U.S. Supreme Court has consistently recognized that the right to procreate is a fundamental liberty interest under the Due Process Clause of the Fourteenth Amendment.
- In Skinner v. Oklahoma (1942), the Court struck down a law mandating sterilization of certain offenders, holding that “procreation is one of the basic civil rights of man” and that laws interfering with this right require the closest constitutional scrutiny.
- In Planned Parenthood v. Casey (1992), the Court reaffirmed that protected liberty includes fundamental decisions about “marriage, procreation, contraception, family relationships, child-rearing, and education.”
- Lower federal courts, such as J.R. v. State of Utah (2002), have drawn on this precedent to emphasize that the Constitution protects not only the decision not to have children (contraception, abortion) but also the decision to conceive and raise them.
Together, these cases strongly establish that reproductive autonomy is constitutionally safeguarded. However, none of the Supreme Court precedents directly equate surrogacy with traditional procreation. Several states have drawn that distinction explicitly, holding that while the right to conceive naturally is fundamental, the use of surrogacy may be balanced against public policy and the welfare of the child.
This creates a constitutional tension for Pennsylvania’s proposals. Bernstine’s bill imposes a categorical ban on surrogacy for PFRs, while Mastriano’s SB 968 layers extensive background checks and court oversight onto all gestational carrier agreements. Critics argue that both approaches risk burdening a fundamental right without the individualized assessment that due process demands. At the same time, the absence of binding precedent equating surrogacy with natural conception gives lawmakers and courts latitude to defend these measures as child-protection regulations rather than outright procreative restrictions.
Notably, no other state has enacted laws as sweeping as those currently under consideration in Pennsylvania. If adopted, these bills could make the Commonwealth a national test case for how far the state may intrude into reproductive autonomy in the realm of assisted reproduction.
Practical and Policy Implications
Implementing such surrogacy restrictions introduces real-world complications:
Enforcement gaps: Restrictions could be avoided by arranging surrogacy in other states or countries with different laws. This creates a patchwork system where wealthier families can bypass Pennsylvania’s restrictions by going elsewhere, while lower-income families are left without options. It also undermines the effectiveness of the law, since children may still end up in situations the legislation was designed to prevent. Ultimately, Pennsylvania risks exporting the very concerns it claims to address, rather than resolving them.
Unintended consequences: Strict laws risk pushing surrogacy underground, reducing protections for surrogate mothers and children, and potentially excluding people who pose little or no risk. Families may turn to informal or unregulated arrangements, which lack medical oversight and legal safeguards. This could increase the likelihood of exploitation, disputes over custody, or unsafe medical practices. In the end, rather than protecting children, overly rigid laws may create environments that are actually less safe for everyone involved.
Scope creep: Applying universal requirements for gestational carriers could invite broader proposals affecting other reproductive choices. A logical next step might be attempts to deny PFRs all reproductive rights, despite the fact that the right to procreate is as firm in surrogacy as it is in natural conception. In Skinner v. Oklahoma (1942), the Supreme Court struck down compulsory sterilization of certain offenders, declaring that “procreation is one of the basic civil rights of man” and fundamental to the survival of the race. If Pennsylvania can prohibit PFRs from surrogacy, what principle would prevent lawmakers from banning them from having children altogether? Both scenarios involve exercises of the same fundamental right to procreate.
Balancing Child Safety and Fundamental Rights
Protecting children is a shared goal, but policy must also respect the constitutional rights associated with family creation and reproduction. Background checks may appear prudent on the surface, but when applied as a prerequisite to parenthood, they fundamentally alter the balance between individual liberty and state power. By conditioning the right to have a family on government approval, these proposals risk eroding one of the most deeply rooted constitutional liberties. Courts have long recognized procreation as a basic civil right, and laws that interfere with it strike at the heart of human dignity and autonomy. Rather than refining or tailoring these restrictions, the more consistent constitutional approach is to reject them outright. Pennsylvania should not move toward normalizing the idea that the state may dictate who is “fit” to bring children into the world.
The Bottom Line
Bernstine’s and Mastriano’s proposals dangerously expand restrictions on reproductive autonomy under the guise of child protection, yet they fail to address actual safety concerns and create new legal inequities. Surrogacy and family formation are deeply personal rights, and these bills would impose broad, punitive barriers without evidence that they prevent harm. PARSOL firmly opposes these measures and urges lawmakers to focus on policies that genuinely protect children while respecting the fundamental rights of all Pennsylvanians.
