Actress and television personality Sherri Shepherd is taking her surrogacy case to the Pennsylvania Supreme Court, arguing lower courts usurped legislative authority in ruling Shepherd’s surrogacy contract made her the legal parent of the resulting child.
Shepherd, who is now required to pay more than $4,000 a month in child support, lost her appeal to the Superior Court in November. The court said the surrogacy contract with a gestational carrier, naming Shepherd and her ex-husband, Lamar Sally, as the intended mother and father, was enforceable. Her attorney, Samuel C. Totaro of Curtin & Heefner, proceeded to file a petition for allowance of appeal in the state Supreme Court last month.
The Superior Court addressed the issue as one of public policy and created law, the petition said, by upholding the agreement among Shepherd, Sally and Jessica Bartholomew, who was the surrogate. Bartholomew had no genetic connection to the child resulting from the surrogacy, the petition said, so she had no parental rights to relinquish.
“Nonetheless, the Superior Court did not address how [Bartholomew] could then legally transfer parental rights to [Shepherd] by contract, when she herself had none to relinquish,” the petition said. “Despite stating that the Adoption Act is not the exclusive means by which an individual with no genetic connection to a child can become the child’s legal ­parent, the Superior Court went no further to explain how [Shepherd] could become a parent by those other ‘means.’”
Shepherd argued no state statutes address surrogacy or the associated contracts, and that the closest item to a law is a Department of Health policy promulgated in 1995.
“The lower courts called this a ‘long governmental practice,’ and by doing so, attempted to elevate this policy to the status of a ‘regulation,’” the petition said.
Until the legislature creates a law recognizing surrogacy contracts, Shepherd argued, the courts should refrain from doing so.
“To date, there are only two appellate court decisions that address any issue with regard to assisted conception matters, and neither addressed the issue of whether a contract can transfer parental rights to a non-biological or non-genetic parent,” the petition said.
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. Shepherd’s petition said this case did not address whether parentage can be created via contract without further legal proceedings.
According to the Superior Court’s opinion, Sally and Shepherd 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, President Judge Susan Peikes Gantman wrote.
Reproductive Possibilities matched Shepherd and Sally with 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,” Gantman wrote.
Bartholomew then filed a petition seeking an order declaring Shepherd and Sally as the legal parents of the baby. But, the opinion said, when the baby was born at Doylestown Hospital, Bartholomew was named as the mother on the birth certificate.
Shepherd filed a response to Bartholomew’s petition, in which she claimed the gestational carrier contract was not enforceable. The trial court 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.
Sally’s attorney, Tiffany L. Palmer of Jerner & Palmer, said she thinks it’s unlikely that the justices will grant allocatur.
“Even if they do we’re confident that the reasoning of the Superior Court and the lower court was sound and entirely consistent with Pennsylvania law surrounding alternative reproduction arrangements,” she said. She noted that the case was marked as a children’s fast-track case.
Totaro pointed out a recent Pennsylvania Supreme Court case involving a stepfather’s child support duties, in which Chief Justice Thomas G. Saylor dissented, expressing discomfort “with the majority’s fashioning of a new doctrine of parentage.”
“That’s heartening to hear that at least the chief justice may agree that this is a matter that should be left up to the legislature to decide,” Totaro said. He previously noted that in Ferguson, the five participating justices were split, and that two of the justices from the majority have retired.
Bartholomew’s attorney, Jeremy T. Ross, did not return a call for comment.
Lizzy McLellan can be contacted at ­215-557-2493 or email@example.com. Follow her on Twitter @ LizzyMcLellTLI. •