SAN DIEGO, March 29, 2016 – The headline isn’t a mistake. Actress Sherri Shepherd, best known for co-hosting the daytime talk show “The View,” lost her final appeal to avoid paying child support to her ex-husband for a son born via a surrogate mother. A Pennsylvania state supreme court judge refused to hear Shepherd’s appeal of a lower court ruling, saying it had no standing to block enforcement of the agreement.
The result means Shepherd is on the hook to pay $4,100 a month in child support to Lamar Sally, her ex-husband, who has custody of his now year-old son, LJ. She is also paying spousal support to Sally. Once again, the legal system is scrambling to keep up with the new realities of reproductive science and modern medicine.
Shepherd met Sally, a screenwriter, in 2010. They got married a year later. They wanted to have children immediately, but Shepherd ran into conception problems even after trying fertility treatments. A surrogate mother in Pennsylvania carried a child to term created with a donor egg and Sally’s sperm, making him the biological as well as the legal father. The location for the surrogacy was chosen deliberately by Shepherd’s attorney because the state’s laws met Shepherd’s requirements deeming her and her husband as the legal parents of the baby born to the surrogate.
Shepherd and Sally entered a legal agreement with an agency who selected the egg donor. They then found the surrogate mother and signed another legal agreement with her, making it clear she would have no legal relationship to the child. Shepherd and Sally agreed “to accept custody and legal parentage of any Child born pursuant to this Agreement.” Shepherd and Sally paid the surrogate $100,000.
Everything proceeded as planned. The surrogate became pregnant in November 2013. Shepherd and Sally moved to a big new house in New Jersey to make room for their growing family. Then Shepherd balked over signing paperwork for a court order regarding the birth certificate to name her and Sally as the birth mother and father. It turned out her brief marriage to Sally was already falling apart. The surrogate was now eight months pregnant.
Shepherd later claimed in an interview with People magazine that she agreed to the surrogacy only to try to save her marriage, that it was Sally’s idea and not something she really wanted. She said she then became concerned Sally would not contribute his share of parenting responsibilities.
The surrogate’s attorney asked for a court order declaring Shepherd and Sally the legal parents. The surrogate gave birth in August 2014. The surrogate’s name was on the birth certificate as the mother. Shepherd refused; after all, the baby was not in any way biologically related to her. No one was named as the father. Despite this mess, Sally took the baby with him to California. Shepherd had no interest and she stayed on the East Coast.
In March 2015, Shepherd and Sally were declared the legal parents of the child, LJ. It found Shepherd had breached the contract with the surrogate. The court ordered her to fulfill her financial obligations to the child, even if she chose not to have any relationship with him. Shepherd tried to claim in an appeal the surrogacy agreement was not enforceable because the state of Pennsylvania has no specific authorization for surrogacy.
In the end, the state ruled Shepherd and Sally are the legal parents, and the appeal went nowhere. Sally told People magazine after the original ruling, “I’m glad the judges saw through all the lies she put out there, and the negative media attention. If she won’t be there for LJ emotionally, I’ll be parent enough for the both of us.”
As in the early days of same-sex marriage, there are different laws among the states governing surrogacy. Some states flat out ban surrogacy; in New York it is a crime to be a surrogate. Some states prohibit paying surrogates in a commercial arrangement; a surrogate can only be a “volunteer.” Some allow gestational surrogacy only. Others permit surrogacy with no limitations at all, including Pennsylvania.
As the legal mother, Shepherd is now in the same position many men have found themselves in over the years. They may be the legal parent named on a birth certificate, but not the biological parent. Nevertheless, they end up bearing legal and financial responsibility for the child. They may be required upon divorce to pay child support for a child who is not biologically theirs.
While this child was created through medical achievements that weren’t even possible a generation ago, it does not change the legal reality. Sherri Shepherd was responsible for bringing the child into the world through her actions. She must share in the responsibility for the child’s upbringing. Parenthood, however it is defined by the law today, does not end just because an adult has “moved on” to a new life. So the least Shepherd can do is pay child support to the custodial parent, who is at least one loving parent this child can count on.
Myra Chack Fleischer serves as lead counsel for Fleischer & Ravreby in Carlsbad, Calif., with a focus on divorce, property, custody and support, settlement agreements, mediation, asset division and family law appeals. Read more Legally Speaking in Communities Digital News. Follow Myra on Twitter: @LawyerMyra. Fleischer can be reached via Google +
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