The Pennsylvania Supreme Court has denied actress and television personality Sherri Shepherd an appeal on the enforceability of her surrogacy agreement, allowing a Superior Court ruling upholding the contract to stand.
The justices denied allocatur Tuesday in In re Baby S. An attorney for Shepherd sought an appeal after the Superior Court ruled that the gestational surrogacy contract made by Shepherd, her husband and a gestational carrier was valid and enforceable.
Shepherd is now required to pay more than $4,000 a month in child support. Her attorney, Samuel C. Totaro of Curtin & Heefner, argued in a petition for allowance of appeal that the lower courts usurped legislative authority in their rulings.
In November, Superior Court President Judge Susan Peikes Gantman wrote that Shepherd was ­incorrect in proposing that she could only become the child’s legal mother through a formal adoption.
“The legislature has taken no action against surrogacy agreements despite the increase in common use along with a [Department of Health] policy to ensure the intended parents acquire the status of legal parents in gestational carrier arrangements,” Gantman wrote.
According to the Superior Court’s opinion, Shepherd and Lamar Sally, her husband, contacted a New Jersey company in 2012 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,” the court said.
Bartholomew was named as the baby’s mother when he was born at Doylestown Hospital, despite her petition for an order declaring Shepherd and Sally as the legal parents.
Shepherd filed a response to Bartholomew’s petition, in which she claimed the gestational carrier contract was not enforceable. The Montgomery County Court of Common Pleas 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.
The Superior Court relied in part on Ferguson v. McKiernan, in which the state Supreme Court found an oral agreement between a mother and sperm donor to be enforceable.
In his petition on Shepherd’s behalf, Totaro said Bartholomew, who had no genetic connection to the baby, had no parental rights and therefore could not transfer parental rights to Shepherd. Until the legislature creates a law recognizing surrogacy contracts, he wrote, the courts should refrain from doing so.
“This decision now clarifies the law in Pennsylvania on this issue for this family and the many others that use assisted reproduction to form their families,” said Sally’s attorney, Tiffany L. Palmer of Jerner & Palmer, in a statement.
Totaro could not be reached for comment Tuesday.
Lizzy McLellan can be contacted at ­215-557-2493 or email@example.com. Follow her on Twitter @LizzyMcLellTLI. •