I Want To Put A Baby In You: Sherri Shepherd Can’t Pretend She Never Put A Baby In Anyone

This is a terrible case for the baby, and a mess for all involved -- but on the bright side for lawyers, it presents some interesting legal issues.

Sherri Shepherd (via Wikimedia)

Sherri Shepherd (via Wikimedia)

Ed. note: This is the second article by new columnist Ellen Trachman. In case you missed it, you can read her first piece here.

In a win for assisted reproduction technology (“ART”), last week the Pennsylvania Supreme Court denied former “The View” host Sherri Shepherd’s appeal asking to avoid any parental obligation to her donor-conceived, surrogate-born child. The ruling should give comfort to surrogates in Pennsylvania who worry they might be stuck with parental rights and duties over a child that they expected would be someone else’s.

Shepherd, a comedian and TV personality best known for co-hosting The View, entered into a surrogacy arrangement with her then-husband, Lamar Sally, with embryos formed from Sally’s sperm and an anonymous egg donor. After infertility treatment, a doctor advised that Shepherd’s eggs were no longer viable and recommended use of an anonymous egg donor. According to the surrogate, and consistent with interviews Shepherd gave addressing the surrogacy, Shepherd was excited, contacting the surrogate regularly, saying she was looking forward to seeing the baby.

About halfway through the pregnancy, Shepherd’s marriage was falling apart. Around the same time, the legal paperwork permitting Shepherd’s and Sally’s names to be placed directly on the child’s birth certificate should have been filed in Pennsylvania, the surrogate’s home state. But Shepherd refused to sign the parentage paperwork.

The baby, Lamar Jr., was born in August 2014. Since the appropriate paperwork was never executed, the surrogate’s name was placed on the birth certificate. Sally took custody, but the surrogate remained liable for child support in California.
Legally, the case has been a mess. Sally filed for separation in California, Shepherd filed for divorce in New Jersey, and the surrogate brought suit in Pennsylvania.

Overall, this is a terrible case for the baby, and a mess for all involved. But on the bright-side for lawyers, the case presents some interesting legal issues.

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1. Can You Trick Someone Into A Surrogacy Pregnancy? One of the claims Shepherd has made is that she was tricked into the surrogacy arrangement and that Sally fraudulently convinced her to enter it, only to have her on the hook for child support. Given Shepherd’s public sharing of her journey with infertility and contemporaneous interviews about using a “no-drama” surrogate to have a child, it was never going to be easy to believe that she was tricked into the surrogacy.

2. For Surrogacy Recognition, The State Is All Important.

a. New Jersey. It’s too bad for Shepherd that the surrogacy parentage wasn’t determined in New Jersey. New Jersey is notorious for being hostile to surrogacy arrangements. The first major surrogacy scandal in the United States appeared in the 1980s in New Jersey with the case of Baby M, which involved a traditional surrogacy arrangement (meaning the surrogate was also biologically related to the child). The surrogate in the Baby M case changed her mind. The court ruled that surrogacy was “possibly criminal.” Following the case, New Jersey outlawed surrogacy and has continued to produce legal decisions contrary to the intent of surrogacy.

b. California. If the surrogacy case had been determined in California, it would have been an open and shut case, with little wiggle room for Shepherd to try to escape. As I mentioned in my article last week, California has long supported surrogacy arrangements, with case law confirming that parentage can be determined by intent versus biological ties (i.e., the intent of using a donor and/or surrogate to have a child). California has also produced robust statutory regulation supporting surrogacy arrangements.

c. Pennsylvania. Rather than proceeding in either California or New Jersey, the surrogate filed a petition in Pennsylvania, seeking a court order that Sally and Shepherd were the parents responsible for Lamar Jr. So Pennsylvania became ground zero for the long and heated dispute.

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And without either statutory law or solid case law in Pennsylvania, Shepherd had a shot of arguing that surrogacy arrangements such as hers should be considered void. She argued that under Pennsylvania law there were only two paths to parenthood—through genetic connection or adoption—and any attempt to establish parenthood in a different way was against public policy as an attempt to circumvent the law. The appellate court disagreed and found that only in the clearest cases can a contract be found against public policy—and such a clear case was not present here.

Now nearly two years old, Lamar Jr. continues to live with his father in California. And Lamar Sr. receives approximately $4,100 per month in child support from Shepherd.

3. Can We Ever Change Our Minds? This is not the first time an intended parent has tried to back out of a surrogacy arrangement after a child has been conceived. It seems to happen most often when the intended parents’ relationship is falling apart. But surrogacy should not be considered special when it comes to the ability of a parent to avoid responsibility—and, fortunately, courts have figured this out for the most part.

Parents can, in fact, change their minds about parenting and put a child up for adoption. But that decision must be made by both parents. It can’t be made by one alone. And thus, Sherri Shepherd is — and should be — out of luck.


Ellen TrachmanEllen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, adoption, and estate planning. You can reach her at babies@abovethelaw.com.