My partner in Philadelphia, Julia Swain, recently published an article in the Philadelphia Bar Association Reporter (Page 15) addressing the case of television personality Sherri Shepherd and her attempts to invalidate a surrogacy contract between her, her husband, and their gestational carrier.
This was a case of first impression for Pennsylvania courts, pitting Shepherd’s estranged husband, Lamar Sally, and their gestational carrier against her to force acceptance of parentage of this baby. After Shepherd refused to execute the documents to establish parentage upon the child’s birth, the gestational carrier initiated a suit to disclaim parentage in the Montgomery County Orphan’s Court – after all, the carrier executed surrogacy contracts which explicitly disclaimed any parental rights she might arguably have as the “birth parent” of the child; she was not signing up to raise the child or establish standing for custody or support.
Shepherd’s attempt to invalidate the surrogacy contract and avoid being the legal parent of the child included arguments at trial that parentage had to be established by biology or adoption and, having neither, was not the child’s parent. She also argued that surrogacy contracts are against Pennsylvania public policy (they are not); and that she signed the contracts under duress (a claim which was withdrawn after public statements of her excitement over being a parent were introduced into evidence).
The Superior Court rendered their decision in November 2015 upholding the trial court’s decision with President Judge Susan Peikes Gantman writing the opinion on behalf of the the three-judge panel. As an aside, Shepherd did not have the luck of the draw on her Superior Court panel: before going to the Bench, Judge Gantman was a well established and well-respected family law attorney. If there was any jurist qualified to consider this appeal and write its opinion, it was Judge Gantman.
Shepherd has since appealed the Superior Court’s decision to the Pennsylvania Supreme Court.
The Shepherd case is important for a variety of reasons: it helps update Pennsylvania’s case law as it applies to surrogacy and alternative forms of family planning; it also helps solidify the validity of contracts in this area to ensure that parties’ cannot easily renege on obligations or use the the threat of invalidation or abandonment of contractual obligations to leverage concessions from the other parent, and; that these contracts are not to be lightly entered into.
Ms. Shepherd committed to bringing a life into the world and should be held responsible for that commitment even if it proves incongruous with her life. Not to be overlooked, as well, is Mr. Sally’s pursuit of child support in their home state of California.
Aaron Weems is an attorney and editor of the Pennsylvania Family Law Blog. Aaron is a partner in Fox Rothschild’s Blue Bell, Pennsylvania office and practices throughout the greater Philadelphia region. Aaron can be reached at 610-397-7989; firstname.lastname@example.org, and on Twitter@AaronWeemsAtty.