Sherri Shepherd Relentlessly Attempts to Renounce Child

No, Sherri Shepherd’s case is not in being heard in California, but that does not make the facts of her legal battle any less intriguing to us California divorce lawyers. It has certainly left me hypothecating as to what the outcome of her widely-publicized parentage and support battle might be under California law. Although a Pennsylvania trial court ruled last year that Shepherd was legally responsible for a child born to a surrogate after her divorce from ex-husband Lamar Sally, the legal battle may not be over for the parties. The case has hit the media again since news recently broke that Shepherd is appealing the trial court’s decision.

In case you haven’t been kept in the loop about Shepherd’s inconceivable battle to be relieved from legal responsibility for a child that she brought into this world with her ex-husband via a surrogate mother, I’ll begin with a brief overview. During Shepherd’s marriage with Sally, the couple contracted with an agency to have a baby via a surrogate mother. The surrogate was implanted with Sally’s sperm and a donor’s egg. Just before the baby was born, Shepherd filed for divorce from Sally, and their son, Lamar Jr. (“LJ”), has been raised single-handedly by his father since his birth in August 2014. Shepherd refused to take responsibility of LJ, essentially claiming that Sally pressured her into having this child and that the lack of biological relationship relieves her from any parental duty now that they have split. However, the Pennsylvania trial court did not buy into her argument, and in April 2015 declared Shepherd as the child’s legal parent. The court ordered that her name be put on LJ’s birth certificate that she must pay Sally over $4,000 per month in child support.

Now, Shepherd is appealing to the Supreme Court of Pennsylvania based on her claim that the trial court did not have authority to find her to be the LJ’s legal parent, as she has no biological or genetic relation to him, and she never legally adopted him. She argues that under the state’s laws, one can only be deemed a parent through genetics/biology or adoption, but that there is no law to deem someone a parent based solely on a surrogacy contract. At this time, we do not know if the court will opt to take this case on appeal.

Each state has its own laws regarding parentage and assisted reproduction. Sally’s attorney has claimed that Shepherd only brought this case in Pennsylvania because the state lacks laws relating to surrogacy. Apparently Shepherd believed that she would have greater odds of winning her case in Pennsylvania than she would have elsewhere, even though she lives in New Jersey and Sally lives in California. This left me wondering how the Pennsylvania courts even obtained jurisdiction over the case, but alas I was able to find out that this is where the surrogate mother resides.

California, as opposed to Pennsylvania, has quite an extensive statutory scheme to address parentage in a variety of assisted reproduction scenarios. The law here is pretty clear regarding who will be the legal parent of a child born out of a contract for assisted reproduction. And although we have heard of cases regarding surrogate mothers changing their mind and later fighting for custody of a child born by them, cases such as Shepherd’s, where the intended parent tries to back out of a surrogacy contract, essentially leaving a surrogate-born child with no legal parent are much less common. California Family Code §7613(a) states:

“If a woman conceives through assisted reproduction with semen or ova or both donated by a donor not her spouse, with the consent of another intended parent, that intended parent is treated in law as if he or she were the natural parent of a child thereby conceived. The other intended parent’s consent shall be in writing and signed by the other intended parent and the woman conceiving through assisted reproduction.” (emphasis added)

Note that this statute applies even if the donor is unknown, which is likely the case for Shepherd’s egg donor. This statute makes it clear that in California, if a surrogacy contract is signed, the person signing the contract is treated as the child’s natural parent. Given that, if Shepherd’s case was heard in California, the result would likely have been the same….yes, Shepherd, you ARE the mother!

It is troubling to know that someone would go through such great lengths to bring a child into this world, and then immediately go to even greater lengths to disown them. Imagine the result if Shepherd was to prevail on her claim! This would set a precedence in Pennsylvania essentially allowing people to back out of surrogacy contracts and leave the child they caused to be created as orphans. I can’t imagine such a result would sit well with any rational human being. And as a side note, I would like to put in a word of support for the surrogate mother, who believed that she was doing something truly good in helping a couple conceive a child. She has now been tangled up in a years-long legal battle, leaving her broke, and never wanting to be a surrogate again. And don’t even get me started on poor baby LJ! I can’t begin to imagine the effect all this turmoil might have on him in the future. I wish him nothing but the best.

We understand that child custody and support matters may be sensitive and could greatly affect your family and your relationship with your children. Our team can provide you with the caring and outstanding legal counsel you need and deserve. If you would like to discuss your rights under California’s child custody laws, we encourage you to contact us as soon as possible.

Feel free to contact us if you are considering a divorce from your spouse, a legal separation, or have questions regarding child custody and visitation. Nancy J. Bickford is the only Certified Family Law Specialist (CFLS) in San Diego County who is also a licensed Certified Public Accountant (CPA) with a Master of Business Administration (MBA). Don’t settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.

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