Baby Battles

Her Body, Their Choice: When A Surrogate Refuses To Abort

Two California women, each pregnant with triplets, are claiming they are being pressured to ‘reduce’ the number of fetuses they carry to term.

12.19.15 5:13 PM ET

Both women had signed a clear contract before becoming pregnant. But thinking about being pregnant and actually being so are two very different states.

On offer for surrogates Melissa Cook, 47, and Brittneyrose Torres, 26, both of California, was over $30,000, plus a bonus for each additional baby that resulted from their in vitro fertilization. Part of the fine print included a “selective reduction” clause—if the implantation resulted in a multiple pregnancy, the intended parents could request that one or more of the fetuses be terminated.

But when the time came to honor that particular stipulation, Cook and Torres—each pregnant with triplets and far enough along to feel a fluttering inside of them—both balked.

“They are human beings. I bonded with these kids. This is just not right,” Cook told the New York Post last month. The Post reported that both women stopped receiving payments for their surrogacy services after they failed to give in to pressure from the would-be parents that they abort one of the fetuses.

Cook reportedly received letters threatening financial ruin from the would-be father’s attorney, sections of which were published in the Post.

Robert Walmsley, the attorney for the intended father of Cook’s babies, says his client never pressured Cook to abort any of the fetuses and accused the tabloid of selectively quoting the letters. “They only took what pieces served their stories,” he says.

According to Walmsley, the intended father has continued to make payments to Cook and has “been extraordinarily sensitive to her emotions and feelings and her decisions.” Walmsley also says his client tried to get Cook counseling.

“We understood it was painful—whatever course she took.”

As for Cook’s offer to adopt one of the babies, Walmsley says his client is not interested.

“Under California law, he is entitled to a judgement establishing his parentage. As a result of that he’s entitled to custody of his children—all of them. Any request for a reduction earlier was done for her protection and to avoid major complications associated with the children. In one respect, by not doing the reduction she’s risking the lives of three children and maybe her own health. No one wants to make a decision to reduce, but sometimes a difficult decision needs to be made.”

Both women have retained an attorney—Harold Cassidy, an outspoken lawyer who has for decades argued against abortion and surrogacy in the courts—and are no longer talking to the press.

From news reports, it seems Cook has either neared or reached 20 weeks into her pregnancy and Torres is around 17 weeks pregnant. The legal cutoff for abortion in California is at “viability,” or about 24 weeks, which lends an urgency to the fight.

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At a time of increased demand for surrogate mothers by same-sex couples and heightened scrutiny following international condemnation of the surrogacy market and a number of high-profile surrogacy legal battles, the women’s stories have garnered national attention.

“They’re still planning not to reduce and it’s still in the hands of attorneys what will happen,” said Jennifer Lahl, director of an anti-surrogacy group, The Center for Bioethics and Culture, where both women turned to for help.

Though the stories are sensational, Lahl, an outspoken advocate who opposes all forms of assistive reproductive technology, including in vitro fertilization for all women, says surrogacies that end badly are more common than we might know.

“It’s not extreme at all,” Lahl says. “We have been amazed because we’ve been writing and reporting on these situations for years. I don’t know why all of a sudden the media is paying attention.”

With a contingent of feminists and conservatives on the same side of the hot-button issue, and with surrogacy laws often lagging behind the huge increase in demand in recent years the public has never wanted for stories of surrogacies gone awry.

In 2013, a surrogate mother in Connecticut refused a $10,000 bribe to abort, offered by the intended parents after it was discovered the baby would have heart defects and a brain abnormality. Following a protracted legal battle, the intended parents gave up their parental rights to the special needs child, and the baby went to a family who wished to remain anonymous.

In 2001, a Berkeley, California, couple decided they wanted nothing to do with the pregnancy they had contracted with a British surrogate after she refused to abort one of the twins she was carrying. A legal battle led the couple to offer a transfer of the $19,000 pregnancy contract to another unnamed family but ultimately the case ended in a settlement. The couple’s attorney, Diane Michelsen, refused to comment to a request for an update, citing a gag order on the case.

In each case, contracts were not enough to ensure that a parent’s wish to abort unwanted fetuses be adhered to. Judith Daar, a professor at Whittier Law School, writing in Harvard’s Bill of Health blog, called the enforceability of such selective reduction provisions, “highly suspect.”

“While surrogacy reallocates the norms of natural conception, it remains faithful to rights that are uniquely situated in a pregnant woman,” she writes.

Disagreement over multiple pregnancies is far from the only issue that crops up when surrogacy is involved.

The Bible offers a seminal tale of surrogacy, with Sarah gifting the handmaid Hagar to her husband Abraham. Hagar did bear a son, but also invited the wrath of her mistress and was evicted (twice!) from their home to wander the desert with her son.

More recently, there was the fight over “Baby M,” in 1987. Her mother, surrogate Mary Beth Whitehead, had conceived with donated sperm from the intended family in New Jersey, but refused to give up the child after she was born. The court ruled for Whitehead, and said that no business contract could trump a loving mother’s right to her child.

Even more recently, in 2010, the Tennessee Supreme Court ruled on the case (PDF) of a woman who acted as a surrogate for an Italian couple, using artificial insemination with the intended father’s sperm. She gave birth to a baby, but refused to relinquish the child after breastfeeding led to bonding. Since she was the biological mother in this case, the courts found her parental rights could not be terminated and the case was returned to the juvenile court.

And heartbreakingly in October of this year, a mother of three in Idaho, Brooke Lee Brown, and the twins she was carrying as a surrogate for a couple in Spain, died of pregnancy complications.

Armed with stories of negative outcomes and concerns about the exploitation of vulnerable surrogate mothers, critics have blasted surrogacy as a violation of human rights and a practice that equates to baby selling.

Surrogacy is banned in a number of European countries, including France, Germany, Sweden, and Italy. And in others, like the U.K. and Ireland, it is unlawful to pay a surrogate mother. 

In the United States, the laws surrounding surrogacy are more complicated. There is no federal law regulating the practice and rules vary by state and even county. Eight states—California, Connecticut, Delaware, New Hampshire, Maine, Nevada, Oregon, and Rhode Island—are friendly to legal contracts that compensate for gestational surrogacy, where a women carries a pregnancy to which she is not genetically linked. Other states are less welcoming. In Michigan, New Jersey, New York, and Washington, paid surrogacy is illegal, and in Washington, D.C., it is a crime.

Despite the negative press, surrogacy is on the rise. Though gestational surrogates are still used in just 1 percent of assisted reproductive technology procedures, the number of live births by surrogate mothers has increased steadily since the first baby was born to a woman from an implanted embryo in 1985 (PDF). There are no statistics for how many women have signed up to be surrogates or how many families attempt pregnancy with a gestational carrier, but figures from the CDC and the Society for Assisted Reproductive Technology (SART) show 1,939 babies were born to surrogate mothers in 2013, a 160 percent increase since the government began collecting data in 2004. Celebrities like Sarah Jessica Parker, Elizabeth Banks, and Elton John have brought surrogacy into the mainstream.

The majority of surrogacy arrangements are made quietly and end well, says Rich Vaughn, founding attorney of the International Fertility Law Group and father to twin boys via a surrogate. The stories of changed minds and broken contracts are “absolute outliers,” he says.

“I do several hundred of these cases every year, and I’ve never had it happen.”

When there are disagreements like ones over selective reduction, Vaughn says most parents are able to work things out without involving the courts. “You’ve got someone who is pregnant. You just can’t go around suing for breach of contract. You’ve got to actually work through it.”

The resolution that Vaughn thinks is likely to come for Melissa Cook and Brittneyrose Torres will doubtful make headlines, and that’s the real shame, says Andrea Muehlhaus, of Irvine, California, who twice chronicled her experience as a surrogate mother on her blog, My Body. Their Baby.

“[The story] makes me upset because it sheds a negative light on surrogacy and how it can be. Some surrogates get into this and don’t fully understand what they’re getting into,” Muehlhaus says.

“But both of my experiences were more than I could have ever imagined. My pregnancies were wonderful, the deliveries were magical. And seeing the parents—two sets of gay dads—holding their babies for the first time was my gift and my reward.”