The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
From In re Baby S., decided last week by a Pennsylvania appellate court. [UPDATE: I obviously don't read enough entertainment news; commenters noted that this case involves "[f]ormer The View co-host Sherri Shepherd" and her ex-husband Lamar Sally. I originally used pseudonyms based on the initials used in the case, and accidentally chose "Sally" as the pseudonym for the ex-wife, without knowing that the ex-husband's last name was Sally. I've switched to using the real first names, except that I use the pseudonym Jane for the surrogate.]
Sherri and Lamar had trouble conceiving a child, so they decided to have a child using a donated egg, Lamar's sperm and a surrogate who would be pregnant with the child. They found the surrogate through a company that specializes in such matters and signed an agreement that provided, in part:
Intended Parents may terminate this Agreement in writing at any time for any reason, provided the Gestational Carrier has not undergone the IVF/Embryo Transfer. If the Gestational Carrier has already undergone the IVF/Embryo Transfer and Intended Parents wish to terminate this Agreement, they may only do so once it is confirmed that Gestational Carrier is NOT pregnant.
"[T]he contract contained provisions directing [Sherri] and [Lamar] to compensate [Jane] for certain expenses associated with the surrogacy process and pregnancy. [Sherri] paid over $100,000.00 to cover those expenses and [Lamar] contributed a $5,000.00 payment."
But then, five months into the pregnancy, as the lawyer "began preparations to obtain a court order designating [Sherri] and [Lamar] as the parents of [Baby] on the child's birth certificate," Sherri "refused to sign the relevant paperwork because [Sherri] and [Lamar] were then having marital difficulties."
[Jane] gave birth to [Baby] at Doylestown Hospital on August 5, 2014. [Jane] was named as the mother on [Baby]'s birth certificate and no name appeared for the father. [Lamar] and [Baby] subsequently moved to California, where [Lamar] lived before his marriage to [Sherri]. [Lamar] applied for medical assistance from the state of California because [Sherri] did not add [Baby] to her health insurance policy. [Jane] received a bill from the Children's Hospital of Philadelphia for the aftercare of [Baby] [Jane] also stated she has been contacted by the state of California regarding her potential liability for child support.
As all this was happening, Jane went to court to have Sherri be declared the mother of the child, as was the original plan. But Sherri responded that surrogacy contracts were against Pennsylvania public policy and unenforceable.
In her first issue, [Sherri] argues the Pennsylvania legislature has declined to enact any law recognizing the validity of surrogacy agreements, despite its consideration of a bill introduced in 2005 that addressed the issue. [Sherri] contends this legislative inaction illustrates the legislature's "distinct reluctance" to recognize surrogacy agreements as binding and enforceable. [Sherri] asserts the [state Department of Health] policy regarding assisted conception birth registration lacks the force or effect of law and is intended merely as guidance in cases in which all parties agree on the issue of parentage.
Held: Bust a deal, face the wheel—or at least have the deal enforced, regardless of your current wishes:
Despite [Sherri]'s emphasis on the fact that no statute recognizes the validity of surrogacy agreements, the absence of a legislative mandate one way or the other "undermines any suggestion that the agreement at issue violates a dominant public policy or obvious ethical or moral standards … demonstrating a virtual unanimity of opinion … sufficient to warrant the invalidation of an otherwise binding agreement."
Moreover, case law from the past decade reflects a growing acceptance of alternative reproductive arrangements in the Commonwealth… Absent an established public policy to void the gestational carrier contract at issue, the contract remains binding and enforceable against [Sherri].
Sounds right to me.