by: Susan L. Crockin, J.D.
Published in ASRM News January 2015
The fall-out from a high-profile divorce and mid-surrogacy change-of-mind case continues, with the financial impact now falling on the gestational surrogate as well as the child. Sherri Shepherd (formerly of “The View”) and her estranged husband Lamar Sally are locked in multi-state divorce, parentage and custody disputes. Shepherd filed for divorce six months into the gestational surrogate pregnancy the couple had contracted for together. The baby boy was conceived with Sally’s sperm and a donor egg. Shepherd decided she did not want to parent and refused to sign the legal documents necessary to obtain a pre-birth order to establish legal maternity and, when the child was born or have him covered under her insurance coverage. The child, whose birth certificate now reflects the gestational surrogate as his mother, is currently in the custody of his father in California, on Medi-Cal for health insurance through that state, with the gestational surrogate’s wages being garnished for reimbursement.
The Pennsylvania gestational surrogate, a 23-year-old single mother and waitress, reportedly filed her own court petition in that state to not be recognized as the legal mother, when the intended parents failed to file a parentage petition as agreed to in the surrogacy agreement. Shepherd’s lawyer has reportedly argued that the gestational surrogate, not their client, is the legal mother, and that the surrogacy agreement the parties all entered into with legal counsel should be void as against public policy under both Pennsylvania and New Jersey law. If Shepherd is not considered the legal mother of the child, either because the agreement is voided or otherwise, she might be freed from any child support obligations. The court has appointed a guardian ad litem for the child in the pending case.
Meanwhile, divorce proceedings are also reportedly pending in New Jersey, where the couple resided and Shepherd still lives, and custody and child support disputes are pending in California where the child and Sally live. These states all have very different views on surrogacy. While Pennsylvania has little law on surrogacy, California is a state where intent to parent at the outset of a surrogacy arrangement has been found sufficient to establish parentage, and New Jersey is the jurisdiction of the infamous 1988 “Baby M” case where a traditional surrogacy agreement was voided and it has been slow to embrace surrogacy in any form.
The former couple have each taken to competing media outlets and TV appearances, with Sally recently claiming Shepherd offered him $150,000 not to place her name on the child’s birth certificate, and other media outlets labeling him a “gold-digger.” In the meantime, the gestational surrogate continues her efforts to be cleared of financial or legal responsibility for a child to whom she has no genetic connection and never intended to parent.
The case is reminiscent of the frequently cited 1998 California Buzzanca case in which lower courts briefly found that Jaycee Buzzanca, a child conceived from donor egg and donor sperm and carried by a gestational carrier, had no legal parents when her intended father filed for divorce and denied paternity. He argued he could not be held responsible as a legal father where he was neither the biological father through use of his sperm nor the legally presumed father because his wife did not carry the child. The California Supreme Court ultimately rejected those arguments, and held that Buzzanca’s original intent to be the father and his execution of a legal surrogacy agreement were sufficient to establish his legal paternity and child support obligations under that state’s laws, despite the parties failing to obtain the planned pre-birth order to establish legal parentage. Whether a similar result is likely under Pennsylvania, or whatever law might be found to apply as to maternity, remains to be seen.
What is clear is that this surrogacy arrangement failed to guarantee the intended parents’ legal obligations to their gestational surrogate or intended child, to safeguard the gestational surrogate from legal and financial vulnerabilities, or to ensure and protect the child’s legal status and financial needs.
[Proceedings are pending in PA (maternity), NJ (divorce) and CA (custody and child support).
“Legally Speaking: A Column Highlighting Recent Court Decisions Affecting the ARTs and the Families They Create” returns to ASRM amidst extraordinary legal developments impacting the assisted reproductive technologies. The column will appear online monthly in ASRM News, with links to court decisions for those who wish to delve directly into the courts' opinions. There will be guest authors to add expertise and unique perspectives related to significant legal topics. “Legally Speaking®” will continue its commitment to not only report on new and noteworthy court cases but also analyze their potential impact and significance on the practice of ART. --Susan Crockin, JD