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ENFORCING SURROGACY AGREEMENTS IN THE COURTS: PUSHING
FOR AN INTENT-BASED STANDARD
MELISSA RUTH*
I. INTRODUCTION: PENNSYLVANIA TAKES BABY STEPS
Sherri Shepherd, actor and former co-host of The View, made headlines
when she sought to have a surrogacy contract invalidated in a Pennsylvania
court.1 Shepherd and her ex-husband, Lamar Sally, had entered into a surrogacy
agreement while they were married, but the two divorced when the surrogate
mother, also known as a gestational carrier, was pregnant, leaving Shepherd to
pay $4,000 each month in child support.2 Following a petition by the gestational
carrier, Shepherd then claimed the agreement was invalid and denied parental
rights to the child.3 The Montgomery County Court of Common Pleas enforced
the agreement, and on appeal, Shepherd argued the court had usurped legislative
authority by upholding the agreement where there was no statute on point.4 The
Superior Court of Pennsylvania ultimately upheld the agreement, finding public
policy did not prevent the enforcement of surrogacy agreement.5
Pennsylvania lacks statutory law relating to the enforcement of surrogacy
agreements, but most county courts have been willing to enter pre-birth orders
recognizing intended parents as birth parents upon the child's birth.6 Case law
* J.D., Villanova University Charles Widger School of Law, 2016. Melissa is an Associ-
ate at McElroy, Deutsch, Mulvaney & Carpenter, LLP in Philadelphia. Melissa previously
served as a judicial law clerk to the Honorable Mary Gibbons Whipple, J.A.D. in the Superior
Court of New Jersey, Appellate Division.
1. See Lizzy McLellan, Actress Takes Surrogacy Case to State Supreme Court, LEGAL
INTELLIGENCER (Jan. 13, 2016) [hereinafter McLellan (1)], http://www. thelegalintelli-
gencer.com/id= 1202746996445 /Actress-Takes-Surrogacy-Case-to-State-High-Court
[https://pern a.cc/HRC5-M2X8] ; Lizzy McLellan, Justices Deny Actress'Appeal on Surro-
gacy Contract, LEGAL INTELLIGENCER (Mar. 1, 2016) [hereinafter McLellan (2)], https://ad-
vance.lex is.com/search?crid=bfof7c7a-063a-476c-8a09-9fb2eafc991a&pdsearc
hterms=LNSDUID-AL M-LGLINT-
1202751051821&pdbypasscitatordocs=False&pdmfid=000516&pdisurlapi=true
[https://penna.cc/Z4G5-NKT2].
2. See McLellan (1), supra note 1.
3. See id. Shepherd brought this action in Pennsylvania because the gestation carrier
resided in Pennsylvania. See id; see also Surrogacy Contracts Directly Enforceable in Penn-
sylvania, BLL OF HEALTH (Nov. 30, 2015), http://blogs.harvard.edu/billofhealth/
2015/11/30/surrogacy-contracts-directly-enforcible-in-pennsylvania/ [https://penna.cc/6RSN-
Z4SP] (stating gestational carrier filed a petition seeking a declaration that both intended par-
ents were the legal parents of Baby S. and directing that their names be entered on the birth
certificate after baby was born and gestational carrier was solely listed on birth certificate).
4. See McLellan (1), supra note 1.
5. See In re Baby S., 128 A.3d 296, 306 (Pa. Super. Ct. 2015).
6. See Krista Sirola, Comment, Are You My Mother? Defending the Rights ofIntended
Parents in Gestational SurrogacyArrangements in Pennsylvania, 14 AM. U.J. GENDER & SOC.
POL'Y & L. 131, 141-42 n.68 (2006). Finally, although Pennsylvania has no laws concerning
surrogacy, the Department of Health has adopted a gestational surrogacy policy. The policy
permits hospitals to issue a child's birth certificate bearing the names of the intended parents.
However, the state did not enact this procedure by statute and therefore it is not binding on the
courts.
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