Can Sherri Shepherd Back Out of a Surrogacy Agreement?

On behalf of The Marks Law Firm, L.L.C. posted in Child Support, Divorce, and In Vitro Fertilization on Thursday, July 24, 2014

Sherri Shepherd has had a difficult year – losing her job on “The View,” battling her ex-husband for child custody and now going through a divorce with her current husband.  Oh, and she wants to back out of a surrogacy agreement to avoid paying her estranged husband years of child support.

While still happily married to Lamar Sally, Shepherd decided she would like another child, but she could not apparently carry a child or even donate an egg for in vitro fertilization.  Consequently, Shepherd and Sally decided to use a donor egg and Sally’s sperm and hire a surrogate to carry the child to term.  They did so, and the surrogate is currently carrying the unborn child.  Given the turn in her marital life, Shepherd now wants nothing to do with the surrogacy, and she maintains she was tricked into the surrogacy not knowing that Sally wanted a divorce and saw the surrogate child as a means of securing years of child support from Shepherd, who earns significantly more than he does.

Though Shepherd shares no DNA with the unborn child, she did enter a contract, and some states honor surrogacy contracts while others find they violate public policy or may even make them illegal.  In a state that recognizes the contracts as valid, both parents have a legal obligation to the child.  Essentially, taking California as an example, the intended parents and the surrogate enter an agreement where they acknowledge the intended parents and obtain a pre-birth order establishing the intended parents as the natural parents, thereby negating the need to file either a paternity action or an adoption proceeding after the birth of the child.  So, in Shepherd’s case, she and Sally entered such an agreement and probably obtained a pre-birth order, which Shepherd seeks to invalidate based upon fraud.

The key issue for Shepherd will be the pre-birth order – had she lived in a different jurisdiction, no action on the child could take place until after the birth of the child, and she could contest parentage at that time.  Should the divorce court in California enforce the pre-birth order?  So long as Shepherd cannot prove fraud, the court will have to find it valid because the child as an innocent party needing protection needs parents to pay for its support – even if one parent never raises the child.  Does Shepherd have a good case for fraud if her allegations are true, namely, that her husband knew he would seek a divorce and wanted to “trap” Shepherd into a surrogacy support agreement?  It would seem very hard to prove this form of fraud; also, if she sought to have a child as well, she would have to establish she would only have wanted the child if her husband would not divorce her soon after the birth of the child – a very hard case to make.

What could happen to the unborn child?  Once born, the intended parents have custody under California law and Shepherd would be the named mother.  If she opted out of parenting, Sally would have sole custodial rights after a court order, but Shepherd would still have a support obligation.

Perhaps because potential parents could change their minds, some states find these agreements illegal or against public policy and therefore unenforceable.  Other states take no position on their validity but require some post-birth legal process, either paternity or adoption.

In Missouri, what would happen?  The use of artificial means to produce the fertilized egg would leave the donor without any legal rights or responsibilities.  So, the egg donor would be legally off the hook, while Sally, as the non-anonymous donor, would seem to have potential legal obligation.  Further complicating matters, the child, born during the marriage, would be presumed the child of the marriage of the parties and Shepherd would have to contest maternity to avoid responsibility.  Because of the questions surrounding the parentage, a paternity suit would have to be added to the divorce to determine the parentage and custody of the child.  Given that Sally and Shepherd caused the child to come into existence, the court would more likely place a duty of support upon them rather than leave the child a ward of the state.  But again, the risk of these situations demonstrates the skepticism states have about surrogacy arrangements.

To be fair, one would think that the Shepherd situation should be the exception rather than the rule, and that most people who pay for a surrogate do so with the intention of raising a child.  It seems that we could benefit from clear statutes that allow for surrogacy but clearly delineate rights and obligations and impose penalties for attempting to escape those obligations.

Surrogacy is a complicated area of the law in Missouri because it is so undefined.  If you have questions about surrogacy, contact us – we can help.