03/05/2016
The Legal lntelligencer
Sherri Shepherd Loses Appeal in Pa. Surrogacy Case
Lizzy McLellan, The Legallntelligencer November 24,2015
A woman who entered a surrogacy contract with her then-husband and a gestational carrier is the legal mother of the child who resulted from the contract and pregnancy, the state Superior Court has ruled, deciding against the appellant, actress and television personality Sherri Shepherd.
In a published opinion Monday, the court ruled in In re Baby S. that the surrogacy contract with a gestational carrier, naming Shepherd and her ex-husband, Lamar Sally, as the intended mother and father, was enforceable. The Superior Court affirmed a ruling from the Montgomery County Court of Common Pleas, which also said Shepherd had breached the terms of the surrogacy contract.
The parties to the case were not named in the opinion, but attorneys involved confirmed their names.
"Appellant is incorrect to propose she could become the legal mother of Baby S. only through a formal adoption, which would require termination of J.B.'s parental rights," President Judge Susan Peikes Gantman wrote for a three-judge panel of the court. "The legislature has taken no action against surrogacy agreements despite the increase in common use along with a DOH policy to ensure the intended parents acquire the status of legal parents in gestational carrier arrangements. "
Samuel C. Totaro Jr. of Curtin & Heefner, who represented Shepherd, said he has to discuss the opinion with his client and her other counsel. He said the court did not address all of the issues presented in the appeal.
"The end of the opinion said the surrogate was not a parent of the child ... our whole argument was really that if the surrogate has no parental rights then, how should she transfer parental rights to Ms. Shepherd through the contract?" Totaro said.
Craig B. Bluestein, an attorney for the baby, said the decision was not unexpected, but that he was happy to see it entered as a published decision, therefore creating precedent.
"This procedure has essentially been going on for 15 to 20 years in Pennsylvania," Bluestein said. "The parties were heavily counseled ... [and] fully understood what they were doing."
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Sally's attorney, Tiffany L. Palmer of Jerner & Palmer, said her client has been raising the child as a single parent since birth, and Shepherd has not had contact with the child. She is, however, required to pay more than $4,000 a month in child support as a result of the former couple's divorce proceedings.
"This case is really of profound importance for Pennsylvania families who seek to have children with assisted reproduction," said Palmer, particularly because Shepherd was not genetically related to her child because a donor egg was used. In that way, she said, the opinion also provides guidance for cases involving same-sex couples.
"It really does clarify that people are going to be held to the contractual obligations that they enter into, and that parentage in Pennsylvania is not going to be solely based on genetics," Palmer said.
According to Gantman's opinion, Sally and Shepherd married in August 2011 and in 2012, they contacted a New Jersey company to assist them with finding and using a gestational carrier. They signed a service agreement with the company, Reproductive Possibilities, which identified them as the intended parents.
Shepherd and Sally also hired an attorney, the opinion said, and Shepherd told the attorney she wanted a gestational carrier in a state where the intended mother could be named as the mother on the child's birth certificate without undergoing adoption proceedings. The attorney advised that a formal adoption would not be required under Pennsylvania law, Gantman wrote.
Reproductive Possibilities matched Shepherd and Sally with Jessica Bartholomew, a Pennsylvania resident. The couple then entered into an agreement with an egg donation agency, and a gestational carrier contract with Bartholomew. According to the opinion, Shepherd paid more than $100,000 to cover expenses associated with the surrogacy and pregnancy, and Sally paid $5,000.
The embryo transfer took place in November 2013, the opinion said, and resulted in a pregnancy. In April 2014, an attorney for Shepherd and Sally began to pursue a court order designating them as the parents of the baby on his birth certificate. But Shepherd refused to sign the necessary paperwork because she and Sally were having "marital difficulties," Gantman wrote.
Bartholomew then filed a petition seeking an order declaring Shepherd and Sally as the legal parents of the baby. But, the opinion said, when the baby was born at Doylestown Hospital, Bartholomew was named as the mother on the birth certificate. She also later received a bill for the aftercare of the baby, and was contacted regarding potential liability for child support after Sally and the child moved to California.
Shepherd filed a response to Bartholomew's petition, in which she claimed the gestational carrier contract was not enforceable. The trial court disagreed with Shepherd, and so did the Superior Court. The court also found that Shepherd breached the contract and was liable for Bartholomew's legal expenses.
According to the Superior Court, Shepherd argued the Pennsylvania Legislature declined to enact a law recognizing the validity of surrogacy agreements, and that state law does not provide for parentage by contract.
The Superior Court looked to Ferguson \I. McKiernan, in which the state Supreme Court found an oral agreement between a mother and s***m donor to be enforceable. In that case, the court rejected the mother's claim that the contract violated public policy, Gantman said.
Likewise, the Superior Court found Shepherd did not meet the burden of showing the gestational carrier contract was contrary to public policy.
"Despite appellant's emphasis on the fact that no statute recognizes the validity of surrogacy agreements, the absence of a legislative mandate one way or the other 'undermines any suggestion that the agreement at issue violates a dominant public policy or obvious ethical or moral standards ... demonstrating a virtual unanimity of opinion ... sufficient to warrant the invalidation of an otherwise binding agreement,'" Gantman wrote.
In addition, the court said, case law from the past decade reflects a growing acceptance of alternative reproductive arrangements.
Jeremy T. Ross, Bartholomew's attorney, did not respond to a call seeking comment.
Totaro noted that in Ferguson, which the Supreme Court decided in 2007, the justices were split, and only three of those involved in the decision remain on the court today. Justice Max Baer wrote the majority opinion in Ferguson, and was joined by then-Chief Justice Ralph J. Cappy and then- Justice Ronald D. Castille. Justices Thomas G. Saylor and J. Michael Eakin filed separate dissenting opinions, and two former justices who heard the case did not participate in the decision.
