You can’t be a donor and a lover 

By on April 30, 2015


Between the Sherri Shepherd surrogacy case and the lawsuit
between Sofía Vergara and her ex partner Nick Loeb over the dispensation of two frozen embryos the world of third-party reproduction has gotten way more attention that I think it ever bargained for.

I’m not a lawyer. I’m just the founder and CEO of an international organization that educates and support intended parents and parents who have become or want to become parents through egg or embryo donation.

When I look at these two cases I see two completely different sets of circumstances, really you cannot compare either with one another.

In late 2013 Sherri Shepherd and her now former husband Lamar Sally began a journey that many couples embark upon which is attempt to have child via egg donation and surrogacy. Both parties entered into a voluntary surrogacy agreement with a gestational surrogate, voluntarily signed a contract and knowingly with their eyes wide open were on their way with great intent and purposely bring a child into the world.

Something happened within their marriage that created irreconcilable differences between the Sally’s and Sherri filed for divorce. In the meantime, there was a gestational surrogate who was pregnant and carrying their baby- a baby now that Sherri Shepherd wanted and most importantly did not want to be financially responsible for. Ms. Shepherd states that Mr. Sally her sign a legal contract under fraudulent circumstances. ( Word on the street is that she divorced him because she claims he had an affair during their three year marriage) And so now she wants nothing to do with him and that’s understandable. However, what if she physically carried that baby she could not decide during the pregnancy that she wasn’t going to be that kids mother – that’s not the way it works. An individual just can’t abdicate their responsibility because they’re angry with their ex partner.

When we look at the Vergara – Loeb case and 2013 they both agreed to try to use in vitro fertilization and a surrogate to have children. They both signed a form stating that any embryos created through the process could be brought to term only with both parties’ consent. The form did not specify — as California law requires — what would happen if they separated. This is what Loeb is attempting to have voided.

The difference between Sherri Shepherd and Sofia Vergara is that from my understanding Shepherd signed a legal contract and knowingly with her eyes wide open entered into VOLUNTARILY a surrogacy cycle knowing full well that there could very well be a baby that would come of the cycle and she would be named as the mother of this child. All before the filing of divorce. Whereas Ms. Vergara would’ve been and unwilling egg donor. As ART Attorney Melissa Brisman so aptly said “A sexual partner cannot be a donor. You can’t be an donor and a lover” it just doesn’t work.

I am however, left wondering in the case of these frozen embryos if a legal contract had been drawn up between both parties where Ms. Vergara waved her rights as a parent just like an egg donor does then she wouldn’t be on the hook for child support. I think perhaps in this situation things are way more complicated because Ms. Vergara had an intimate relationship with Mr. Loeb – and I don’t know about any of you but if my husband and I had leftover embryos and we divorced I don’t think that I would be okay with him finding a surrogate and having children with my DNA running around in the world and not being their mother.

In retrospect, what should’ve happened – there should have been an agreement/legal contract between both parties stating that in the event of the termination of the relationship the embryos should be donated to science or destroyed or an agreement between the two of them should have been reached before any embryos were created. I’m sure she’s thinking about now is “If these embryos become babies I am attached to this jackass forever




Portland, OR

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April 2015
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