Pennsylvania Woman Loses Surrogacy Contract Appeal

A Pennsylvania woman who entered into a gestational surrogacy agreement with her then-husband and a gestational surrogate has been declared to be the legal mother of the child. The Pennsylvania Superior Court upheld the ruling of the Montgomery County Court of Common Pleas in mid-November, ruling against actress and television personality Sherri Shepherd.

According to court documents, Shepherd and her then-husband, Lamar Sally, sought out reproductive surrogacy services shortly after their marriage in 2012. They were matched with Jessica Bartholomew, who carried the child to term. Shepherd and Sally filed court documents to have them named as parents on the child’s birth certificate, but Shepherd refused to sign the documents, citing marital difficulties. Bartholomew then asked the court to enter an order declaring Shepherd and Sally to be the legal parents. Shepherd claimed that the gestational surrogacy contract was unenforceable, but the trial court disagreed, as did the Superior Court.

In her appeal, Shepherd claimed that Pennsylvania law does not allow “parentage by contract” and that the surrogacy agreement could therefore not be enforced. The Superior Court rejected that argument, citing Ferguson v. McKiernan, where the Pennsylvania Supreme Court allowed an oral agreement between a mother and a sperm donor to be enforceable. The court concluded that the surrogacy agreement had full force of law, and that Shepherd’s failure to sign documents designating her as legal parent were in breach of that agreement.

Counsel for Lamar Sally told the court that Sally has been raising the child as a single parent since birth and that Shepherd has had no contact with the child.

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