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US surrogate takes custody case to appeal

31 May 2016
Appeared in BioNews 853

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.

Melissa Cook agreed to act as a surrogate for the man, known as CM, in 2015 using his sperm and donor eggs. The pair drew up a contract under which it was agreed she would be paid US$33,000 for the pregnancy plus $6000 for each additional child.

However, when CM discovered that Cook was pregnant with triplets, his lawyer allegedly asked her to abort one of the fetuses, claiming that CM was not in a financial position to support three children (see BioNews 833) – a fact that was later disputed by CM. 

Cook also claims that CM threatened to withhold payments due to her under the agreement, including money for hospital care, if she did not comply – the contract allegedly contained a clause allowing CM the option of abortion. He also reportedly told Cook that he would rather give up the third child for adoption than to allow her to have custody.

Cook sought to challenge the validity of the contract by asking a court to rule that Californian surrogacy law, under which commercial surrogacy arrangements are permitted, was unconstitutional (see BioNews 834).

Cook, who has four previous children, also sought custody of the child that CM allegedly said he could not afford to raise, but has said she would have all three if it was shown he could not care for them adequately.

A Californian state court ruled against her, but Cook is now appealing that decision and the case was heard at a federal district court last week, and the decision is currently pending.

Her lawyer, Michael Caspino, said it was a 'landmark case'. 'Surrogacy needs to be fixed because right now the women who carry the babies and the children have zero rights. No right whatsoever. And there needs to be balance here,' he told the Daily Mail.

'The only people with rights under the California statute are the people who write the cheques to get the babies. Nobody else matters. That is wrong. That needs to be fixed.'

Cook is also being represented by one of the lawyers involved in the 'Baby M' case in the 1980s, in which a surrogate sought custody of a child, who was later allowed to remain with the intended parents with the surrogate being granted visitation rights. The contract in this case was declared invalid.

CM's lawyer, Robert Walmsley, said that while CM could have requested that Cook terminate a fetus, he could not have forced her to do so. 'Most importantly, the children are still his,' he added.

Walmsley also disputed many of the claims made by Cook. 'There are so many erroneous facts in the court complaints filed by Melissa Cook and her lawyers,' he said. 'Their goal is to litigate this in the media and file in any court available to drain him financially.'

SOURCES & REFERENCES
Press Briefing Re: Melissa Cook Triplet Surrogacy Case: First Case in the United States Challenging the Constitutionality of a State Surrogacy Enabling Statute
Business Wire |  24 May 2016
Surrogate Mom at Center of Legal Battle Speaks Out
ABC News |  25 May 2016
Surrogate mother, 48, who was paid $33k for triplets files for custody after the father demanded that she abort one of the babies 'because he couldn't afford to care for it'
Daily Mail |  25 May 2016
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