Sherri Shepherd denies her unborn child
Should you be able to deny parenthood if the child is conceived through donor egg and born by a gestational surrogate?

When you transfer an embryo into a surrogate and it implants and starts to grow into a baby, you are a parent, damn it! It doesn’t matter whether the egg came from your body or the sperm from your spouse’s body. You are a parent… maybe not legally (depending on your state), but certainly morally.

I am sick and tired of hearing about Sherri Shepherd, soon to be ex-cohost of The View and her soon to be ex-husband Lamar Sally, and I am even more sick and tired of hearing about their divorce. Whether they live in wedded bliss or go their blissful separate ways is none of my business and certainly none of my interest, but I sure as heck care that they are undermining the legitimacy of parenting via surrogacy!

What We “Know”

Truthfully, we don’t know much. When your best online sources are TMZ, the New York Post, and Jezebel, you know your facts are less than solid. Be that as it may, here’s what the media is reporting.

Shepherd and Sally were married in 2011. They signed a prenuptial agreement that specified, among other things, that Sally would get a single lump sum payment of $60,000 if they divorced within five years, and Shepherd would get full custody of any children.

Not surprisingly given Shepherd’s age, they were not able to get pregnant without fertility treatment. When IVF using her eggs was unsuccessful, they turned to surrogacy using donor egg and Sally’s sperm. They are expecting their first child, a son, later this month.

Sally filed for divorce in California, a state that recognizes and enforces surrogacy agreements, and may recognize Shepherd as a parent even though she has no genetic connection to the child. Shepherd later filed for divorce in New Jersey, the state where they lived together and a state that does not recognize, and thus may not enforce a surrogacy agreement or recognize Shepherd as the parent.

Sally requested full physical and legal custody of the child in his divorce filings. Presumably if he were granted custody and if the court upheld the surrogacy agreement thus upholding Shepherd’s role as mother, he could receive child support.

It is being widely reported, which, I might add, doesn’t make it true, that Shepherd does not want to be legally found to be the child’s mother since she has no genetic connection to the child. She supposedly believes that Sally planned this baby so that when/if they divorced he would be able to get child support, which will be a great deal more money than the $60,000 lump sum payment required by the pre-nup.

I don’t know whether to sigh deeply or scream loudly.

Parenthood via Surrogacy is Still Parenthood

Once you decide to transfer the embryo to a surrogate, if it implants you become that child’s parent. You don’t get to decide later whether you are the parent. YOU ARE THE PARENT. This is the case regardless whether you have a genetic connection to this child.

Be Careful of the Law

As is likely to become painfully and publicly clear as this case moves forward: not all states recognize surrogacy agreements. I can’t stress enough that if you are considering becoming a parent through surrogacy, you must use an attorney that specializes in reproductive law to guide you on how to protect yourself and your child. Creating a Family has resources to help you find this type of legal specialist.

How Many Babies are Born Through Surrogacy in the US?

It is not known how many children in the US or worldwide have been born via surrogacy. We do know that the numbers are rising. The Council for Responsible Genetics reported that between 2004 and 2008, over 5,000 children were born through surrogacy and this number is “exploding”. The New York Times recently reported that over 2000 babies will be born through gestational surrogacy in the US this year.

How Often Do Intended Parents Back Out

Shepherd and Sally do not represent the world of parents via surrogacy (thank goodness). They are, however, not alone. Andrew W. Vorzimer, a Los Angeles surrogacy lawyer, has tried to track the cases where surrogacy agreements go awry. Over the decades, Mr. Vorzimer said, there have been 81 cases of intended parents who changed their minds. Sometimes the situation is similar to the Sherri Shepherd case where the intended parents decides against parenting, and sometimes the intended parents try to back out when the child has significant birth defects or abnormalities.

Keeping Things in Perspective

I have no idea how accurate Vorzimer’s numbers on intended parents not honoring the surrogacy agreement after a pregnancy has been achieved since these are extremely difficult numbers to track, but even assuming they are on the low side, the number of cases where intended parents try to back out of the surrogacy arrangement is a very small percentage of the total number of families created through gestational surrogacy.

Let’s also remember that parents via old fashioned intercourse have also been know to shirk their parenting responsibilities. In fact, I suspect that each of us knows or has heard of a case like that. So let us not conclude that intended parents via surrogacy have a corner on the irresponsible parent market.

Irony Bites

I find it ironic that in June 2013 Shepherd told Essence the following about their search for a surrogate:

“We’re starting the process of making sure the uterus that we picked is not crazy,” said Shepherd. “I put out there that I would give someone a free weave for a year and a free Hyundai. Literally, we’d be at the club and these girls would be like … I’ll carry yo’ baby. I dont think so. Eight different shades of hair color, nine Salt and Pepa cuts, asymmetrical this and braids for days talking about “I’ll carry it.” No, you just got off the pole, you’re on break, go on back to work! So, it’s been a journey trying to sift through the ones with drama and no drama so I think I have one, but I’ll definitely keep everyone updated.”

Perhaps she should have sifted a little closer to home for drama. Yeah, irony bites big time.

I’m Sorry

I’m sorry that Shepherd and Sally’s marriage failed. I’m sorry that Shepherd feels duped. I’m sorry that Shepherd’s 9-year-old son is having to live through this mess. I’m sorry, really sorry, for the how the surrogate that Shepherd and Sally are using must feel. What I am the most sorry for, however, is that someday this precious perfect infant will grow up and read about the drama surrounding his birth and possibly feel less worthy and wanted. No child deserves this.

I’d love to hear your thoughts.

P.S. Check out these Top Ten Tips for Creating Your Family Through Surrogacy and this video on Choices You’ll Face When Creating Your Family Through Surrogacy


Image credit: The Root