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Thursday, April 23, 2015

The Sherri Shepherd Case: One More Reason to Ban Commercial Surrogacy

The actress, author, and businesswoman Sherri Shepherd, currently on The View, lost her court battle today over the custody of her surrogate-born son. She and her soon-to-be former husband Lamar Sally, a scriptwriter, had been embroiled in an odd custody and support battle involving a child born to a surrogate they hired.

Shepherd and Sally entered into a 23-page contract with Jessica Bartholomew to serve as a gestational surrogate for them, using a purchased egg. The three faced off in court over the custody and financial responsibility for the baby boy named Lamar Sally Junior.

Unlike other disputed surrogate agreements, this one is not about the surrogate making claims for the baby, nor is it about the surrogate in any way failing to complete her obligation or wanting to keep the baby she carried. Nor, as in some disputed surrogate births, is it a case of the intended parents rejecting one or more babies for physical disabilities (as happened in cases such as that of Baby Grammy.

This was a case of the mother who, together with her husband, hired the surrogate, changed her mind and refused delivery of the healthy little boy.

Sally says that Shepherd wanted a baby and that they decided on surrogacy after she underwent fertility treatments, when it was determined that her eggs were not viable. Shepherd subsequently filed for divorce from Sally and claims to have been pressured by him to enter into the contract she now wants voided, despite her publicly shared joy about the impending birth.

Shepherd had refused to see the child and was not present when he was born. Because of Shepherd’s absence, Bartholomew was named as mother on the birth certificate and now has financial obligations she is unprepared to deal with. Bartholomew was paid $25,000 but is facing financial hardship after she received hospital bills. Because she is listed as the baby’s noncustodial mother in California, she has been charged with the baby’s medical expenses and has a child support case pending against her.

It is unclear if this issue was likewise settled today, but the path was paved by Shepherd being declared the legal mother. Lamar Sally told reporters that Shepherd had refused to have the child covered by her SAG health insurance despite being assured by Sally’s attorney that it would not prejudice the results of this case.

Who’s Your Mommy?

Determining paternity for custody or child support is a simple matter of DNA test results submitted to family court. While motherhood was once considered unquestionable, courts today are faced with convoluted cases of maternity involving multiple players. Twenty-first century motherhood is presenting courts with riddles far more complex than any that King Solomon had to unravel.

Sally expressed a desire for his son to know “his mother”.  “He’s going to ask me, ‘Where’s my mother? How come I don’t have a mom?'”

Even having been declared legal mother, however, does not mean that Shepherd can be made to act as a mother to the now 8-month-old child. When this boy asks who is mother is, will he really be referring to and wanting to know his father’s former wife who contracted for him but who is not biologically related to him?

Many adopted children and children of sperm and egg donation seek their biological parents in order to know their heredity and medical history. The only person other than his father this child is likely to think of in that role – his only genetic mother – would be the egg donor, who interestingly was a non-party, excluded from this litigation

Melissa B. Brisman, the attorney and owner of Reproductive Possibilities who arranged the surrogate contract was reportedly concerned about the precedent this case could have set for future surrogacy contracts. If prospective surrogates feared financial loss, clearly that would reduce the number of candidates, cutting into a lucrative business. Brisman therefore hoped that Shepherd would be found responsible, as it appears she was.

Sally’s lawyer, Tiffany Palmer, also had asked that Shepherd be held liable, claiming that it is in the child’s best interest to have two legal parents. Shepherd, whose income is far higher than Sally’s, has reportedly claimed that Sally wants the baby only as a way to obtain child support from her, in spite of the fact that they entered into the agreement while married.

One can only wonder what effect Shepherd’s choice to fight against being this child’s mother will have on her nine-year-old son from a previous marriage who was himself at the center of a custody battle.

Broader Implications

Jennifer Lahl, president and founder of the Center for Bioethics and Culture, is a former pediatric nurse and film-maker. Her documentary, Breeders: A Sub-Class of Women, cites numerous examples of surrogacy arrangements gone wrong, some of which are also delineated in a previous Huffington Post article on third-party reproduction. The question we should be asking is not just “Who is the mother of Lamar Junior?” but “Is it ethical to contract and pay for the creation of any child?”

The website for the Modern Family Surrogacy Center states that “there are many religious organizations that frown upon the process of surrogacy.”

In its purest form, writes Charles J. Dougherty of the Center for Health Policy and Ethics, “a surrogate mother has no genetic link to the child she bears. An embryo that is the genetic offspring of another couple is implanted in her uterus. The surrogate is a mother only biologically and only for nine months; she gives the child to its genetic parents at birth.”

Even this “purest” form of surrogacy was found unanimously to be unethical by eight scholars at a conference at Creighton University. Cases like the one at hand, involving not just a surrogate but also an egg supplied by yet another party, are further muddied by the fact that even if all had gone as planned, this child would not have been given to – or likely ever know – his genetic mother, the egg provider.

Commercial surrogacy is a multimillion-dollar industry with most of that money going to agencies, lawyers, and brokers, not the women who risk their lives to act as breeders. Paid surrogacy is banned in Australia, Canada, Finland, France, Hong Kong, Hungary, Iceland, Italy, the Netherlands and Belgium, New Zealand, Pakistan, Portugal, Saudi Arabia, Spain, the United Kingdom, and the state of Michigan.

Surrogacy, where allowable in the rest of the U.S., is largely unregulated, controlled mainly by fertility doctors, agencies, and clinics, many of which do not adhere to guidelines. This lax atmosphere “raises vexing ethical questions.”

Adoption separates children from their blood kin ostensibly to save them from abuse or a life of neglect in an orphanage. Adoption’s intent is to place children with vetted and screened parents. Despite the good intentions, adoptees have long described the difficulties which “not knowing” their heritage creates for them, their children, and their grandchildren. Unlike children born through surrogacy, adoptees have an original birth certificate that shows their accurate original parents’ names. States are one by one reversing antiquated laws that deny adoptees access to these original documents.

Surrogate births, on the other hand, resemble black-market adoptions and child trafficking in that they involve pre-birth contracts and money paid for the transfer of the child. Additionally, in surrogacy there is no birth record that records the actual genetic mother when it is the surrogate egg donor.

Surrogacy – like other forms of third-party anonymous reproduction – deliberately creates half-orphans, intentionally separating the baby from his or her genetic kin, with no pretense that doing so is in the child’s best interest or saves the child from potential harm. Surrogacy is simply a contract to produce a human being as a commodity to be sold to those who can afford to purchase a custom-made child, with total disregard for the child’s lost genetic history.


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