Surrogacy Law in Chaos

This week has brought some interesting, astounding and surprising developments in the area of surrogacy, particularly the right to use frozen embryos for implantation and the legal consequences of doing so after the parties no longer remain in a relationship.

First, the Sherri Shepherd saga reached a decisive moment with a Pennsylvania court deciding, in what may be a case of first impression in the United States, that Shepherd must have her name listed as the natural mother of a child she and her estranged husband procured through the use of a surrogate – even though Shepherd contributed no DNA to the child and the parties separated during the pregnancy of the surrogate.  The court considered the contract entered by the parties for the surrogacy and concluded that the surrogate – who had been listed as the mother on the birth certificate – had no legal claim to the child, and Shepherd by contract agreed to, or represented herself as, the mother of the child.  Unless Shepherd successfully convinces the divorce court in California that her estranged husband “tricked” her into the surrogacy as a means of gaining child support, Shepherd will have to pay child support to her future ex-husband until the child becomes emancipated.

While some will think the judgment against Shepherd harsh and forcing her to support a child she does not want, the case is more complicated than appears.  Shepherd did participate in the surrogacy process by signing the forms that obligate her as a mother.  Seeking to back out because of divorce solely based on the lack of shared DNA would be akin to trying to “return” an adopted child – once a child has become your legal offspring, no divorce court can relieve you of a duty of support.

Second, Sofia Vergara and her former fiancé find themselves in a battle over frozen embryos.  While the two were together, Sofia decided she did not want to endure another pregnancy but would agree to have her embryos used for in vitro fertilization.  They tried implantation with a surrogate on two occasions, and it did not work.  The tensions surrounding wanting to have a child caused the couple to break up – but some frozen embryos remain.  The former fiancé wants them so he can raise the family they intended; Sofia wants them to use if and when she decides.  This case involves an interesting mix of contract law, property law and family law.  As frozen embryos, they are the property of someone as determined by the contract or agreement between the parties.  But as potential life, the frozen embryos represent forced parentage for an unwilling participant.

Third, a similar case awaits decision in the Illinois appellate court involving a couple that had harvested the woman’s eggs immediately after she was diagnosed with lymphoma.  The man agreed to be the sperm donor and the fertilized eggs sit frozen in a lab.  Each party wants them to use, and they are no longer together; consequently, one will be the unwilling parent should the pre-embryos become an actual child.  What are the legal standards for evaluating ownership?  Does the fact that the decision could make one party a parent against his or her will matter?

All of the chaos surrounding surrogacy currently cries out for adoption of a uniform surrogacy law in every state.  Shockingly, few states even have laws on the books governing surrogacy, and those that do are not identical and do not address the situations in the cases mentioned above.  Given the ethical, emotional, psychological and legal issues involved, it is past time for legislative bodies to act in a thoughtful and responsive manner to the questions raised by surrogacy, given the prevalence of surrogacy in today’s society.

If you have questions about surrogacy, contact us – we can help.

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