Family Law Corner: Surrogate on the Hook for Child Support? The View from Pennsylvania Says No

Sherri Shepherd’s (The View) three-year fight to invalidate her surrogacy contract has established the law in Pennsylvania (In Re: Baby S.) on surrogacy contracts.

The decision could not have come sooner for the gestational carrier, Jessica Bartholomew, a Pennsylvania resident.

According to a Pennsylvania appellate court, Shepherd told her attorney that she wanted the gestational carrier located in a state where the intended mother could be named as the mother on the child’s birth certificate without undergoing adoption proceedings, and Pennsylvania and Bartholomew fit the bill.

In early 2014, after first pursuing a court order to designate her and husband, Lamar Sally, as the parents of the unborn baby, Shepherd then refused to sign the necessary paperwork because she and Sally were having “marital difficulties.” Bartholomew filed a Petition seeking an order declaring Shepherd and Sally the legal parents. When baby Lamar Jr. was born in Pennsylvania, Bartholomew was named as the mother and non-custodial parent on the birth certificate. Shepherd responded to Bartholomew’s Petition by claiming that the gestational carrier contract was not enforceable. In the meantime, Shepherd and Sally became embroiled in a nasty divorce in New Jersey (where Shepherd resided) and California (where Sally lived with the baby).

It got much worse for Bartholomew when Sally applied for Medi-Cal for the baby. This resulted in California going after Bartholomew for child support. Bartholomew stated in an interview with the Daily Mail, “I could not believe this [was] happening. When I decided to do this for them, I didn’t think ever that this could happen. I just don’t understand how she could do that and act like this baby is non-existent . . .”

Pursuant to California Family Code §17415, if “a parent is absent from the home,” in this case Bartholomew, and an application for public assistance is made (including Medi-Cal benefits) the case must be referred to the local child support agency immediately. See §17415(a). Once the referral is made, the local child support agency “shall investigate the question of nonsupport . . . and shall take all steps necessary to obtain child support for the needy child.” §17415(c).

Thus, Bartholomew found her-self facing two legal battles: one in California, where the state acknowledged her parentage based on the birth certificate and was forcing her to pay child support, and one in Pennsylvania, where she was trying to force Shepherd to take responsibility for the baby.

The Pennsylvania trial court held in her favor and the appellate court agreed: “(Shepherd) does not dispute that she freely entered into the gestational carrier contract . . . Baby S. would not have been born but for (her) actions and express agreement to be the child’s legal mother.” The landmark California case In re Marriage of Buzzanca (1998) 61 Cal.App.4th 1410 held that the surrogacy contract alone would support a finding of parentage. It appears that this controversial case made legal history in Pennsylvania, where no appellate court had yet ruled on the validity of surrogacy contracts.