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Surrogate carrying triplets brings lawsuit to prevent being sued for failing to abort

11 January 2016
Appeared in BioNews 834

A US woman acting as a surrogate has filed a lawsuit to prevent a claim in damages being brought by the commissioning father after he requested she undergo a selective reduction.

Melissa Cook is now over 23 weeks pregnant with triplets after undergoing IVF. She was implanted with three embryos created from the commissioning father's sperm and donor eggs.

The commissioning father, known in court papers as CM, wanted Cook to reduce the pregnancy from triplets to twins, reportedly threatening to withhold financial payments and sue for child support if she did not comply (see BioNews 833). CM, who is single, reportedly argued that he was not in a financial position to care for three children at the same time although his lawyer, Robert Walmsley, later clarified that CM was concerned about the medical risks associated with multiple births.   

The parties had entered into a contract under which it was agreed that Cook would be paid $33,000 for the pregnancy and $6,000 for each additional child. The contract allegedly contains a clause that gives CM the option to ask Cook to abort.  

Cook's lawsuit in response states that California surrogacy law, under which commercial surrogacy arrangements are permitted, violates both equal-protection and due-process rights, which are guaranteed by the US Constitution. The lawsuit, which seeks a declaration that she cannot be sued for damages, states that each of the triplets 'has a fundamental right to get to know and love their mother and to continue their relationships with her,' the Daily Mail reports.  

Cook's lawsuit also requests that she be declared the legal mother of the third child and be allowed to apply for custody over the other two once they are born, explains the Washington Post. CM refused Cook's initial request that she be allowed to adopt one of the triplets instead of having a termination, allegedly saying that he will deliver the third child up for adoption to a third party instead.

Harold Cassidy, Cook's lawyer said that both the contract in this case and the governing legislation 'will not withstand constitutional scrutiny'.

'The notion that a man can demand that a mother terminate the life of one of the children she carries by an abortion, and then claim that she is liable for money damages when she refuses, is cruel to the mother,' he said.

Professor Judith Daar, who is chairman of the American Society for Reproductive Medicine Ethics Committee, said that 'a court would not order a surrogate to have a procedure she did not consent to or that she was opposed to'. However, she also said that it would be unlikely for a court to give a surrogate parental rights.

Professor Daar added that it is unclear whether she may be sued for damages, stating 'that has not really been discussed by the court. It might take the remedies question to a new level'.

9 October 2017 - by Antony Starza-Allen 
A man has lost his claim for damages against a London IVF clinic for failing to obtain his consent for the use of embryos created with his former partner...
31 May 2016 - by Antony Starza-Allen 
A woman in the USA who acted as a surrogate for a single man, and gave birth to triplets, has taken her claim for custody of at least one of the children to an appeals court...
21 December 2015 - by Dr Mary Yarwood 
Two surrogates in the USA carrying triplets are coming under pressure from the intended parents to abort one of their fetuses...
30 November 2015 - by Cait McDonagh 
An appeals court in Pennsylvania, USA, has ruled that a woman is to remain the legal parent of a child born through surrogacy, despite separating from her husband before the child was born...
14 September 2015 - by Antony Starza-Allen 
The UK's High Court has ruled that single parents cannot apply for a parental order to become the legal parent of a child born through surrogacy...
27 July 2015 - by Julianna Photopoulos 
A male same-sex couple have been stuck in Thailand with their baby daughter for the past six months, after the surrogate mother refused to allow them to leave the country claiming they are not 'an ordinary couple'...
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