The Superior Court of Pennsylvania this week bolstered the validity of gestational-surrogacy contracts, a boon for many same-sex parents.
The appellate court on Monday upheld a lower-court ruling that found that such agreements are enforceable. This is the first appellate decision in Pennsylvania to support such a finding, which is especially important as the state lacks any statutes governing assisted-reproductive rights.
“The only law we really have that gives lawyers guidance on this issue is case law,” said Tiffany Palmer, partner at Jerner & Palmer, P.C., who represented the father in the case, Lamar Sally. “And up until this point, there was very little case law at all on the issue of surrogacy.”
Sally is the ex-husband of actor and former talk-show personality Sherri Shepard. The two wed in 2011 and, when they learned Shepard’s eggs were not viable for pregnancy, decided to go the route of surrogacy, using Sally’s sperm and a donor egg.
The couple entered into a gestational-carrier contract with a Pennsylvania woman.
Such agreements typically address who the intended parents are, the surrogate’s payment and health-insurance costs and any contingency plans if issues arise.
However, six months into the woman’s pregnancy, Shepard told Sally she wanted a divorce. According to court papers, she initially told him she intended for them to co-parent but ultimately refused to sign the court papers that would list her as the mother on the child’s birth certificate. By default, the surrogate was listed as the mother.
When Sally enrolled in public assistance in California to get the baby health insurance, the state sought reimbursement from the other parent, which, because of the birth certificate, was the surrogate, herself a single mother. In the summer of 2014, Shepard moved to nullify the gestational-surrogacy contract, arguing that the surrogate is the mother.
In May of this year, however, Montgomery County Orphans’ Court Judge Stanley Ott ruled that the contract Shepard signed is enforceable, and that she, not the surrogate, is the child’s mother. At that time, Shepard’s name was added to the child’s birth certificate, and she became responsible for child-support payments.
She appealed the ruling to the Superior Court, a three-judge panel of which unanimously upheld Ott’s decision this week.
Palmer noted that the ruling is especially integral as many couples, including same-sex male couples, choose Pennsylvania surrogates, as surrogacy is illegal in New York and Washington, D.C., and against public policy in New Jersey.
“Up until now, attorneys in Pennsylvania doing assisted-reproductive law had been operating without guidance by a statute and under the assumption that gestational-carrier contracts should be enforced and could be interpreted to be enforceable, but there was no direct court opinion stating that,” she said. “We kind of had to draw analogies between other types of cases; sperm-donor contracts have been found to be enforceable so, therefore, gestational-carrier contracts should be enforceable. But we now have a case that directly answers that question. We represent a lot of same-sex couples who do surrogacy in Pennsylvania, and I think that they can now have peace of mind that the contracts they’re entering into will be enforced if something goes wrong. They didn’t have that before.”
Shepard could ask the state Supreme Court to consider the case, but the court must agree to hear an appeal; Palmer noted that the top court is less likely to accept appellate-court cases where the decisions were unanimous.
“After numerous court battles over the past two years, I am glad the higher court ruled in my favor,” Sally said in a statement. “Now I can fully focus on raising my son.”
