Shepherd-Sally Surrogacy Agreement Upheld by Pennsylvania Appellate Court

December 16 , 2015
by: Susan L. Crockin, J.D.
Orginally published in ASRM News December 2015

A Pennsylvania intermediate appellate court has affirmed a lower court’s ruling that Sherri Shepherd is the legal mother of “Baby S,” a child born as a result of a gestational carrier arrangement entered into in Pennsylvania, using an anonymous donor and Shepherd’s then- husband’s sperm. The court expressly ruled that a gestational carrier contract is enforceable under Pennsylvania law, and upheld Shepherd’s child support payments as the legal mother. In its November decision, the appellate court cited and quoted extensively from the multiple legal agreements the parties entered into with one another, as well as those the intended parents entered into with both the gestational carrier and egg donor recruiting programs, all of which reflected Shepherd’s explicit desire and intent to be a mother through the arrangement. The court also noted the carrier, Jessica Bartholomew, acknowledged in the gestational carrier agreement that she would have no parental rights or obligations, and it found she never had any. That finding allowed the court to also reject Shepherd’s claim that Bartholomew had maternal rights which were never legally terminated.

Midway through the pregnancy, Shepherd refused to cooperate in establishing her legal parentage, and unsuccessfully argued the contract was unenforceable under Pennsylvania law. The carrier, Jessica Bartholomew, counterclaimed for breach of contract—which the court found, and legal fees, which the court awarded.

On appeal, Shepherd’s attorneys argued that because the Pennsylvania legislature had not passed surrogacy legislation, surrogacy was void as against public policy in that state and that there were only two ways to legally establish parentage—genetics or adoption—arguing that “parentage by contract” unlawfully attempted to circumvent Pennsylvania’s adoption laws. Shepherd argued that Bartholomew was either the legal mother whose rights had not been terminated under adoption law, or, if the court found she was not the legal mother, that surrogacy contracts are void as against public policy.  The court rejected both arguments, and the appellate court has now agreed.

Both courts relied on an analysis of a 20-year-old directive from the state’s Department of Health that the lower court described as, “designed to facilitate assisted conception birth registrations. That this administrative procedure exists and courts in the Commonwealth routinely enter orders that authorize the issuance of birth certificates for children born as a result of alternate reproductive technologies would clearly militate against a finding that surrogacy contracts violate public policy.”

The court also noted that the few court decisions over the past decade in Pennsylvania that had addressed assisted reproduction, had focused on the language of the contracts and the parties’ intentions, and had expressed no public policy concerns.  The court concluded: “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. Absent an established public policy to void the gestational carrier contract at issue, the contract remains binding and enforceable against Appellant.”  

While future appeals or legal actions by Shepherd cannot be ruled out, this appellate decision provides a welcome degree of clarity for those who want to undertake collaborative ART arrangements in Pennsylvania.

The full decision is available at:
In Re. Baby S: http://www.pacourts.us/assets/opinions/Superior/out/J-A28015-15o%20-%201024461805731818.pdf?cb=1

A column highlighting recent court decisions affecting the assisted reproductive technologies and the families they create, written by Susan L. Crockin, J.D.  

“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

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