A surrogacy agreement, followed by an acrimonious divorce and ensuing lawsuits in three states, has led to a strange custodial assignment for one California infant. Sherri Shepherd, former panel member of daytime television talk show “The View,” entered into an agreement with a young waitress named Jessica Bartholomew for her to carry a child for herself and her then-husband, Lamar Sally. While Shepherd had initially planned for Bartholomew to use one of Shepherd’s eggs, a donor egg was ultimately used, along with Sally’s sperm, to conceive the child. The couple filed for divorce while Bartholomew was pregnant with the child, giving birth in August of 2014. Shepherd disavowed the infant, going so far as to claim that she had been fraudulently induced to sign the surrogacy agreement in an effort by Sally to collect large sums in child support after divorcing her. As a result of Shepherd’s disavowal, Bartholomew’s name was listed on the child’s birth certificate as his “non-custodial parent,” and the child is currently in Sally’s full custody. This made Bartholomew, a former waitress from California, liable for child support. The infant experienced medical issues after birth for which Sally applied for Medi-Cal benefits, which caused the State of California to initiate an action against Bartholomew for reimbursement. Bartholomew, never having expressed the desire or intention to serve as more than a surrogate for the child, turned to the courts of Pennsylvania (where she now lives) for a ruling that Shepherd is the child’s mother, not Bartholomew. The court agreed, ruling that Shepherd, despite not being genetically related to the child, is the child’s legal parent and is liable for any reimbursement previously attributed to Bartholomew. As a result of this decision, Shepherd is legally bound to support the child, now approximately nine months old, until he is at least 18.
While Shepherd currently claims that she was tricked by her gold-digging ex into signing the surrogacy agreement, she appeared to be not only a willing, but enthusiastic, participant in the surrogacy process prior to the divorce. In an interview with Essence magazine, Shepherd discussed the process of selecting a surrogate and the manner in which she would explain the surrogacy process to her son from a previous relationship. Additionally, Shepherd appeared in videos on other TV and internet news outlets expressing her excitement over the surrogacy. After the Pennsylvania court’s ruling, Sally’s attorney stated that these press and TV clips were, among other evidence, used to prove Shepherd’s intent when entering the surrogacy agreement. Raegen Rasnic, an attorney practicing in the nebulous world of assisted reproduction law, declared that state laws vary greatly in this field, and that some states have no laws at all governing surrogacy. Rasnic noted that intended surrogate parents should include a choice of law clause in agreements governing surrogacies for this reason, but that the Pennsylvania court nonetheless reached a sound result, in terms of public policy and law.
One 1998 California case, In re Marriage of Buzzanca, involved similar issues. There, a couple entered a surrogacy agreement, but divorced prior to the birth of the child. The father disavowed the child and refused to pay child support, and the trial court ruled that the child had no legal parents. This decision was overturned on appeal, with the court ruling that the infant “never would have been born had not [the couple] both agreed to have a fertilized egg implanted in a surrogate.”