Two days ago, a Pennsylvania appeals court ruled that gestational surrogacy contracts were enforceable in that state, despite the absence of any legislation. The court turned back the efforts of Sherri Shepherd to evade her parental responsibilities for a child born to a Pennsylvania carrier. Ms. Shepherd and her husband had created an embryo with the husband’s sperm and a donor egg which they obtained through a reputable and experienced donor program, Tiny Treasures. They had located the gestational carrier with the assistance of Reproductive Possibilities, Melissa Brisman’s gestational carrier program in New Jersey.
The appeals court rejected Ms. Shepherd’s claim that gestational carrier agreements should be found to be void as against public policy. The court noted that Ms. Brisman had arranged hundreds of gestational carrier births in Pennsylvania, and that Pennsylvania’s Department of Health had a policies and procedures in place regarding assisted conception and the creation of birth certificates in such cases. The court also took note of the well drafted contracts, both for the gestational carrier agreement and the egg donor agreement, which made it clear that neither the donor nor the carrier had any parental rights to a child born as a result of the agreements. The contracts also explicitly spelled out the intent of Ms. Shepherd and her husband to be the legal parent of any child born to the gestational carrier that they had chosen. Ms. Shepherd and her husband had also sent emails to the carrier expressing their gratitude for what she was doing for them, attended medical appointments and ultrasounds, and made it abundantly clear by their actions and words that they intended to be the parents of the child.
This case provides important persuasive authority for gestational carriers in all states that do not have a statute explicitly controlling gestational carrier arrangements. The carrier for Ms. Shepherd faced the daunting prospect of hospital bills for the child, and also claims for child support from California where Ms. Shepherd’s estranged husband had relocated (since Ms. Shepherd had refused to place the child on her health insurance).
Like Pennsylvania, Vermont’s Department of Health has long had policies and procedures in place governing the amendment of birth certificates and gestational carrier arrangements. Gestational carrier births have been occurring in Vermont for more than fifteen years. We also have a growing body of Vermont Supreme Court case law which has determined parentage based on the expressed intent of the parties, such as in the Miller-Jenkins case which I have discussed in earlier blogs. The Baby S. case certainly reinforces the need for well drafted contracts in these arrangements to ensure that the intent of the parties throughout the process is enforced when a child is born.
Ms. Sheperd’s actions were, in my opinion, reprehensible and amoral. It is a common fear among intended parents of that gestational carriers might refused to turn a child over to them after a birth. However, this is extremely rare nationally, and has never happened in Vermont. The majority of the reported cases around the country involve litigation between the intended parents.
As we approach Thanksgiving this year, this case gives us something else to be thankful for, that is the enhanced enforceability of properly drawn gestational carrier agreements, and the stability provided for the gestational carriers and the children born as a result of these agreements. We are also thankful for the extraordinary legal efforts of the attorneys involved in this case on behalf of the carrier and Ms. Shepherd’s husband, and for the final legal work of Melissa Brisman who drafted the gestational carrier agreement and who was an important witness at the trial. Thanks also to Tiffany Palmer, Esq., who represented the husband, and Craig Bluestein, Esq. the guardian ad litem.