Surrogacy Contracts: Can You Return the Baby?

By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Assisted Reproductive Technology on Thursday, December 10, 2015.

The View’s Sherri Shepherd had trouble conceiving, and hired a surrogate to carry her child. Then Sherri decided she didn’t want it. This holiday season people are asking: “Are babies returnable?”

This should be the kind of case Sherri Shepherd, and her co-hosts on The View, might have discussed on the air with righteous indignation and inflammatory tones!

Who walks away from a baby they paid very big money to bring into the world?

Sherri Shepherd and Lamar Sally married in 2011. They tried to have a child, but after difficulties, contacted Reproductive Possibilities, a company that facilitates surrogacy arrangements.

In Sherri’s surrogacy arrangement, a surrogate carrier was artificially inseminated with sperm from Lamar. Sherri provided no genetic material, but was the intended mother and a party to the contract.

Sherri’s surrogacy contract provided:

Intended Parents may terminate this Agreement in writing at any time for any reason, provided the Gestational Carrier has not undergone the IVF/Embryo Transfer. If the Gestational Carrier has already undergone the IVF/Embryo Transfer and Intended Parents wish to terminate this Agreement, they may only do so once it is confirmed that Gestational Carrier is NOT pregnant.

The contract also directed her to compensate the surrogate for certain expenses, and she paid over $100,000.00 to cover those expenses.

Five months into the pregnancy, Sherri refused to sign the relevant paperwork because she and Lamar were having marital difficulties.

The baby was born on August 5, 2014, and the surrogate went to court to have Sherri be declared the mother of the child. But Sherri responded that her surrogacy contract was against Pennsylvania public policy and unenforceable.

She lost her fight to have her name removed from the birth certificate of the son she had via surrogate, and she must continue paying child support for the 1-year-old boy being raised by her ex-husband.

This is a sad case in an otherwise happy area of law. Infertile parents have an unprecedented opportunity to enjoy the rewards of parenting where before they couldn’t.

I’ve written about assisted reproductive technology before. Florida has set itself apart as a haven for Artificial Reproductive Technology, as our laws make the process less prone to legal problems. Florida is also one of the few states that permits intended parents to establish the parental status to a child born through assisted reproduction without a paternity/adoption process.

However, Florida statutes make detailed provisions that must be followed for a contract for it to be enforceable.

The People magazine article is available here.