Sherri Shepherd, an actress and former co-host of the talk show The View, recently lost her appeal of a prior court decision establishing her as the mother of a child born through surrogacy. As part of that decision, she was also ordered to pay her ex-husband, the child’s father, child support and to repay the legal fees of the surrogate. The case provides a great insight into the inner-workings of surrogacy arrangement in the United States.
Shortly after their marriage in 2011, Sherri Shepherd and Lamar Sally decided they wanted to have a child together. Since Sherri was unable to give birth, the couple contracted with a surrogacy agency which would allow the couple to use a surrogate as a gestational carrier for their child. As part of that arrangement, the couple agreed to pay over $100,000 for the agency’s and the surrogate’s services and entered into a contract acknowledging that Sherri and Lamar would assume responsibility as the legal parents of the child upon birth. Since Sherri was unable to provide her own eggs, the couple also entered into an agreement with an egg donor agency and the egg donor herself whereby the egg donor provided eggs to be fertilized with Lamar’s semen. Those agreements further recognized that the couple would be the legal parents of the child born thereafter. Unfortunately, not long before the birth of the child, the couple’s marriage began to unravel.
By the time the child was born, Sherri had made clear she wanted nothing to do with the child and had prevented her attorney from taking the necessary steps to register her as the child’s mother on the birth certificate. By default, the child’s mother was initially determined to be the surrogate who gave birth to the child but never intended to raise the child at any point in the process. Lamar eventually took custody of the child and sought child support from Sherri.
This situation created by Sherri presented a novel legal question in Pennsylvania: When a surrogate gives birth to a child with whom she shares no DNA and the intended-mother with whom the child shares no DNA refuses to take responsibility for the child as agreed upon, who is the legal parent? A legal battle ensued to answer this question, which ended with a trial court declaring Sherri the mother and ordering her to pay child support to Lamar.
On appeal, the Superior Court of Pennsylvania upheld the trial court’s decision establishing Sherri Shepherd as the legal mother of the child. In its decision, the Court relied on the enforcement of the three contracts signed by the couple, all of which set forth Shepherd as the legal mother of the child. Ms. Shepherd had sought to set those contracts aside as against public policy, but the Court did not buy her argument given the “growing acceptance of alternative reproductive arrangements” in the State and throughout the nation.
Notably, the Court did not necessarily declare surrogacy legal in Pennsylvania; rather, it noted that in the absence of the laws prohibiting such a practice, the Court must enforce valid surrogacy contracts as it would enforce any other contract not otherwise prohibited by law. Whether Ms. Shepherd decides to have a relationship with the child or not is up to her—her obligation to pay child support, on the other hand, is mandatory.
If you have questions about surrogacy, please contact our office at (704) 810-1400 to schedule a consultation.