*Co-authored by Nadia A. Margherio, Principal and Attorney, Sodoma Law, P.C.
Actress and contributor to The View, Sherri Shepherd had made it clear: she wanted out of any legal responsibility for the child borne by a surrogate chosen by Shepherd and her ex-husband. Volatile divorces and custody battles aired in the public sphere due to celebrity status aren't unusual; what sets this case apart is its central issue, surrogacy, around which legal status becomes enmeshed in a complex set of rules and regulations in the absence of clear-cut laws.
Just as I'd advise anyone planning to be married to cover their bases in the case of divorce, for anyone considering employing a surrogate with their spouse, Shepherd's case can serve as a primer for the scenarios they ought to consider -- and to address ahead of time.
So what happened?
Shepherd and her then husband, Lamar Sally, signed a surrogacy agreement, also known as gestational carrier agreement, with the company Reproductive Possibilities. A Surrogacy Agreement is a legally binding contract between the surrogate and the intended parents (IP's) that sets out the legal liabilities and responsibilities for the surrogate and the IP's during the pregnancy and after the child is born. Typically, fertility clinics will not begin the surrogacy process without confirmation that a Surrogacy Agreement has been duly executed between the IP's and the surrogate.
Shepherd and Sally coordinated with an agency to find a surrogate in Pennsylvania, Jessica Bartholomew, at which point they then took the next step and entered into an agreement with Tiny Treasures, an egg donation agency. The Egg Donor Agreement would release the egg donor of any legal responsibility to any child born as a result of the donated egg. This means that before the surrogate was ever inseminated the IP's would have duly executed three different contracts stating their intentions and legal obligations to the child upon conception.
In Shepherd's case, when their surrogate was 20 weeks pregnant, and per the surrogacy agreement, Shepherd and Sally drafted the necessary paperwork that would allow the birth certificate to identify them as the legal parents of the child. However, by this point Shepherd and Sally were going through a tumultuous time in their marriage; they later separated, and Shepherd refused to sign the paperwork.
In spite of a civil suit from the surrogate for a court order (otherwise known as a pre-birth order) to put Shepherd's name on the birth certificate, when the child was born the surrogate's name was listed. Sally, per the original agreements, assumed responsibility as the child's legal parent and eventually took the baby to California, where he continues to live and care for the child. Shepherd, on the other hand, has since refused to assume any legal responsibility for the minor child, including paying any child support or enrolling the baby on her health insurance, as required by the original agreement.
The laws applying to surrogacy are different and at times, non-existent in each state. For example, in North Carolina where I practice, there is no statutory authority that governs or dictates the surrogacy process. Outside of a carrier agreement, it is presumed that if you give birth to a baby then you are the biological mother and would therefore be legally responsible for the child.
If you are married, and give birth, it is presumed that your husband is the biological father of the child. As such when parties decide to use Assisted Reproductive Technology (ART) to create a family, and specifically a surrogate, it is vital to execute a carrier agreement to make sure the responsibilities of each party are clear and concise during the pregnancy and when the baby arrives.
Since Shepherd executed a carrier agreement, among other legally binding documents, the terms of the contract would control who is responsible for raising the child. I suspect that the contract set out that both Sherri and her husband would continue to be legally and financially responsible for the baby regardless of their marital status.
In my opinion, no individual should be able to utilize the benefits of medical technology to create a child, then turn their back on a child simply because they separate from their spouse at any stage during the surrogacy process. Instead, when a marital split does happen during gestation of or following the birth of a child by an agreed-upon surrogate, the next logical step would be for the parties to enter into a custody and child support order whereby the parties' parenting schedule and financial responsibilities would be clearly spelled out. Shepherd's actions and decisions to turn away from the child she took serious consideration to create and bring into this world, with the help of medical technology, is troubling to say the least.
Nadia A. Margherio is a Principal and practicing attorney at Sodoma Law, P.C. in the family law and assisted reproductive technology practice areas. She is a member of both the North Carolina and Pennsylvania state bar and is a licensed Parenting Coordinator. Nadia holds a Bachelor's degree from Binghamton University, State University of New York, a Master's in social work from University of Maryland at Baltimore, and a J.D. from University of South Carolina.