An appeals court in Pennsylvania, USA, has ruled that a woman is to remain the legal parent of a child born through surrogacy, despite separating from her husband before the child was born. The ruling means that she is required to provide financial support for the child, who is being cared for by her ex-husband and with whom she originally commissioned the surrogacy.
Actress Sherri Shepherd, star of television shows The View and 30 Rock, entered into a surrogacy agreement with her husband, Lemar Sally, in November 2012 using a donor egg and Sally's sperm. Shepherd specified that she would like to be named on the child's birth certificate, which is allowed by the Pennsylvania Department of Health.
Jessica Batholomew, who had previously given birth to twins in a surrogacy arrangement, agreed to act as a surrogate for the couple in September 2013 and an agreement was drawn up between the parties. The contract identified Shepherd and Sally as the intended mother and father, and also allowed the couple to cancel the arrangement before pregnancy.
However, a few weeks before the child was born, Shepherd, who had contributed $100,000 under the surrogacy agreement to cover related expenses, refused to a sign a pre-birth order naming her as the legal parent, saying that she and her husband were having marital difficulties.
Batholomew sought to enforce the agreement, but at the time the child was born the surrogate was still considered as the child's legal parent. She received a medical bill for the child's aftercare and was also warned by the Californian authorities about her liability to pay child support when Sally settled there with the child.
In April 2015, a court declared both Shepherd and Sally were the legal parents, saying also that Shepherd was in breach of the contract and was liable to pay Batholomew's legal expenses. Shepherd's appeal of that decision to the Superior Court of Pennsylvania was rejected this month.
Shepherd had argued that Pennsylvania law had not so far upheld surrogacy agreements as binding and enforceable. She also told the appellate court that the agreement should be set aside for reasons of public policy.
The Superior Court disagreed on both counts and upheld the previous ruling. '[The child] would not have been born but for Appellant's actions and express agreement to be the childs legal mother', said President Judge Gantman, who ruled that the surrogacy contract should be upheld.
Ms Shepherd must now pay $4,100 per month in child support payments.
Melissa Brisman, the owner of the surrogacy agency used by the parties, Reproductive Possibilities, welcomed the decision. 'Surrogates don't want to feel that someone could want a baby and then just back out. The surrogate is not the mother,' she said.