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Sherri Shepherd’s Surrogacy Battle and the View from the Other Side.

March 16, 2015 | By: | Filed under: Current Affairs, Egg Donation, Faith and Infertility, Gestational Carrier, In the News, In-House Egg Donation Programs, infertility in the media, Infertility on Television, IVF, Personal Musings, Surrogacy, Thinking Out Loud

Sherri Shepherd.  Who hasn’t heard her name recently?  The former host of The View is in the midst of a major lawsuit with her ex-husband over her son.  She claims she doesn’t have any responsibility for the child she helped bring into this world.  REALLY??  Is she serious?  Sadly, yes.  And she’s leaving this issue — what could be a ground-breaking decision in the laws pertaining to third-party assisted reproduction — to a Judge to decide.  She couldn’t work it out privately with her Ex.  Nope, she had to go to Court.

I used to like Ms. Shepherd.  She spoke on behalf of the infertile.  She was our advocate.  She was one of the very few public — celebrity voices — speaking about the pain of infertility.  I am trying to have faith in our judicial system right now because Ms. Shepherd has destroyed my faith in the power of the infertile woman.  What she is doing, is to me, disgraceful.  Wow!  I guess I am angry.

I went to a benefit a few years ago for RESOLVE.  It was its annual Night of Hope and Ms. Shepherd was receiving an award for raising awareness about infertility.  She gave a moving speech about the pain we go through when we cannot conceive without medical help — without help from third-parties.  She moved me to tears talking about how much she wanted a baby and to be a mother and how sad she was every time her fertility treatment failed.  It was very clear during that speech that she wanted nothing more than what every other infertile woman wants, a BABY.  And now she’s trying to dump the responsibility for that baby — that longed-for, hoped-for, much-wanted baby — on someone else.  And that someone else is her egg donor or surrogate, that third party without whom she and Mr. Sally would not have conceived, and realized what she said was her dream.  Her dream of becoming a mother.

Many of us don’t realize that dream and that’s why I find her actions to be such a slap in the face.  To go from being a proud infertile woman putting one foot in front of the other and thanking her fertility specialist (I can remember his name) for helping her, to dumping responsibility that is rightly hers on the people who helped her achieve that dream.  That’s just wrong.  It is morally wrong and it is legally wrong.  I am going to stop discussing the moral component of it because I get the fact that there are people in this world for whom I hold little or no respect.  But from a legal standpoint, what she’s doing is profoundly dangerous and could potentially turn reproductive law upside down, and erase years of progress helping women just like Ms. Shepherd become mothers.

I should comment that I don’t know many details about Ms. Shepherd’s egg donation arrangement or surrogacy arrangement.  But if she’s litigating this issue in Pennsylvania then I am guessing her surrogate is a resident of the Commonwealth of Pennsylvania and that the laws of that Commonwealth govern the surrogacy agreement.  The thing is, there isn’t really any law in Pennsylvania when it comes to third-party assisted reproduction.  There isn’t a statute governing third-party assisted reproduction and when there isn’t a statute governing the actions of intended parents like Ms. Shepherd and Mr. Sally, the laws of third-party assisted reproduction typically look to the intent of the intended parents (Ms. Shepherd and Mr. Sally) prior to the conception of the child.  Typically those intentions are spelled out either in an egg donation agreement or gestational surrogacy agreement (or both), or in some cases through consent forms signed by an egg donor at the fertility clinic at the time she donated her eggs.  But the bottom line is that there is some written statement that the egg donor does not want to have parental rights to any child conceived from her donation, and that the intended parents want to have parental rights and all the responsibilities that come with parenthood for any child conceived from the donation of eggs by the donor.  Similarly, the intended parents (Ms. Shepherd and Mr. Sally) would — and in this case did — enter into a gestational surrogacy agreement which would clearly spell out that the intended parents (Ms. Shepherd and Mr. Sally) were going to be the parents of the child the surrogate carried, and the surrogate would not have any parental rights.  A well-written agreement would address what would happen in the event the intended parents divorce prior to the birth of the child.  Typically the intended parents are still the parents even if they divorce but maybe her agreement says something different, or is silent on the point.  But the bottom line is that in order to have conceived this child, Ms. Shepherd’s egg donor waived all parental rights and Ms. Shepherd assumed them; and Ms. Shepherd stated her unequivocal desire and intent to be a parent of the child her surrogate was carrying and her surrogate expressed no desire or intention to ever be the child’s parent.  I would be shocked if the legal documents at issue in her case don’t refer to the parties’ intent about who were going to be this child’s parents.  Ms. Shepherd claims she was defrauded into entering into the agreement.  I find that hard to believe given the years of infertility treatment she went through and the statements I heard her make that night at RESOLVE.  I think she wanted this baby.

The question is whether the Judge will uphold the terms of those documents or contracts.  And that is where I get scared.  What if the Judge decides that the agreement with the surrogate is unenforceable for some reason and that Ms. Shepherd isn’t legally responsible for this child, that she isn’t his mother?  What then?  Does any intended parent get to change their mind when they one day decide that they don’t want to be a parent anymore?  Where does that leave the law of intent as it informs decisions related to third-party assisted reproduction?  Is the intent of the parties what governs the determination of parentage or is a gestational surrogacy agreement or egg donation agreement just another contract that can be thrown out of court on technical or some other grounds?  Decades of law pertaining to third-party assisted reproduction are at risk.  All the hard work my colleagues have done to make it possible for Ms. Shepherd even to consider having a child through third-party assisted reproduction could be damaged, even worse, destroyed.  Will Pennsylvania remain a surrogate-friendly state?  I get sick thinking about it.

Ms. Shepherd has crossed over to the other side, that of becoming a parent after battling infertility.  And apparently she doesn’t like the view so much.  I get the fact that Ms. Shepherd is angry at her ex-husband.  I get the fact that she doesn’t want to be in this child’s life.  I may not agree with her moral positions but legally I am horrified at the way she is going about getting out of her obligations as a parent.  What she is doing has the potential to set the law back in ways so significant as to preclude other infertile women and men from having a child through third-party assisted reproduction.  I am at a loss to understand how someone who was such a staunch advocate for the infertility community and who so desperately wanted a baby could get to a place where she wanted to put the rights of so many others like her at risk.  I cannot fathom why someone would risk establishing a legal precedent that could jeaopardize the rights of so many just like her.

This all begs one question:  What would Ms. Shepherd have said three or four years ago about someone taking the position she is taking today?  Probably nothing nice.

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