In re Baby S., 2015 Pa.Super. 244 (November 23, 2015)
Sherri Shepherd, one of the hosts of the ABC-TV daytime talk show “The View,” and her ex-husband Lamar Sally were married for just over a year when they arranged a surrogate to bear their second child. Having previously given birth to a child who was 15 weeks premature (by her first husband), Sheppard was deemed to be incapable of a natural pregnancy, so she purchased eggs from an anonymous donor and hired a gestational carrier. The embryo created by the donor’s egg and Sally’s sperm was implanted in the carrier’s uterus in November 2013. A successful pregnancy was confirmed two weeks later, and a twenty-week ultrasound was conducted in March 2014. Up to this point, everything had gone smoothly — except for the marriage of Shepherd and Sally.
According to the gestational carrier agreement, Shepherd was required by the 20th week of pregnancy to begin the legal process paving the way to be named as the child’s mother on its birth certificate. To this date, Pennsylvania does not have a statute or procedural rules governing surrogacy, but an earlier Superior Court decision (J.F.v.D.B.,897 A.2d1261 (Pa.Super.2006)) has upheld the validity of a surrogacy contract. Furthermore, the Pennsylvania Department of Health publishes procedures for assisted conception birth registrations. Prior to the child’s birth, the intended parents are required to obtain a court order declaring them as the child’s parents; and file a supplemental report containing information about the intended parents.
Despite giving her assurances and expressing gratitude to the gestational carrier — right up to the 20 week ultrasound — Shepherd refused to sign a petition to be named as the child’s mother prior to the birth (as she had agreed in her surrogacy contract). The gestational carrier then filed a petition to declare Shepherd and Sally — who were then divorcing — as the child’s parents on its birth certificate, and seeking reimbursement of legal fees.
Before the court could rule, the child was born, and a birth certificate was issued, naming the carrier as the child’s mother. Mr. Sally assumed custody and moved to California with the child, where he applied for medical assistance because Shepherd did not add the child to her medical insurance. Shepherd had no contact. The gestational carrier received a medical bill from the Philadelphia hospital where the child was born, and a notice from the California child support agency regarding her potential liability for support.
Shepherd responded to the carrier’s petition to declare parentage with new matter alleging that the surrogacy contract was unenforceable, as well as a counterclaim for breach, specific performance and counsel fees. After two days of hearings, the Montgomery County trial court held that Shepherd and Sally were the legal parents of Baby S. The trial court held that Shepherd had breached the surrogacy contract and was liable for the carrier’s legal expenses under the terms of the contract. Shepherd filed an appeal, raising two issues:
(1) WHETHER THE PROVISIONS OF THE SURROGACY AGREEMENT BETWEEN THE PARTIES ATTEMPTING TO CREATE PARENTAGE OF A CHILD BY CONTRACT ARE VALID AND ENFORCEABLE UNDER PENNSYLVANIA LAW?
(2) WHETHER PENNSYLVANIA SHOULD RECOGNIZE THE PRINCIPLE OF “MATERNITY BY ESTOPPEL”?
Combining the issues, the Superior Court acknowledged the lack of any statute explicitly acknowledging the validity of surrogacy agreements. Yet, the Court refused to infer that the General Assembly intended to prohibit them, just because a legislative initiative in 2005 failed to pass. The Court acknowledged that J.F. was a custody action in which the carrier was held to have no standing, and did not address parentage. And, the Court rejected the notion that parentage may be established in one of only two ways: by genetics/biology, or by adoption.
Shepherd argued that the gestational carrier contract was void as against public policy, because it circumvented the Adoption Act (which requires a termination of parental rights) and compensated the carrier monetarily for relinquishing custody of a child. The Superior Court aligned itself with the trial court, which had relied on Ferguson v. McKiernan, 596 Pa. 78, 940 A.2d 1236 (2007). In Ferguson, the Supreme Court affirmed an oral agreement between a mother and sperm donor who surrendered his parental rights in exchange for a release from support obligations. The Supreme Court in Ferguson held that a contract cannot be found to violate public policy unless there is evidence in the form of statutes and precedents that express and amplify the policy. There is insufficient support in the law of Pennsylvania, the Court held in Ferguson, to establish that alternative reproductive technology is contrary to public policy.
The Superior Court thus held that Shepherd failed to meet her burden to prove the existence of a public policy that her surrogacy contract violated. The Court also noted that neither genetics/biology nor adoption were appropriate avenues to determine parentage in this case. The gestational carrier was not genetically related to the child, nor did she have parental rights to be terminated in an adoption.
News reports indicate that Shepherd will continue to pay $4,100 per month child support.