Surrogate Sues Father Over Triplets

A surrogate pregnant with triplets in California is suing to keep one or all of the babies, which are unrelated to her.

Photo Illustration by Emil Lendof/The Daily Beast

Backed by a well-known anti-choice lawyer, a surrogate mother-to-be in California is suing the genetic father (and intended parent) of the triplets she’s carrying, claiming his alleged wish to terminate one of the fetuses entitles her to keep at least one of the babies, which are all unrelated to her. And if it comes down to it, she says, she’ll take all of them.

“I will be prepared to take all three,” Melissa Cook told The Daily Beast. “I feel for [the father] to be perfectly honest, but you can’t just have such disregard for human life.”

Cook says she no longer sees surrogacy in a favorable light and, in her legal complaint, she claims both she and the fetuses are victims of what is, in effect, baby-selling.

The 47-year-old—already a traditional mother to four children, including a previous set of triplets—is now 23 weeks pregnant with the triplets produced from the single Georgia man’s sperm and eggs from a 20-year-old donor. According to her lawsuit, filed in Los Angeles County Superior Court on Monday, the lack of a genetic tie should have no bearing on Cook’s status as the mother.

“The bonding process between the pregnant mother and the children she carries during the nine months of pregnancy is the same physical process and experience, whether or not the mother is genetically related to the children,” the complaint reads. “The bonding process is both psychological and physiological. It cannot be wished away and it is not prevented or diminished by the existence of a written surrogacy contract or any of the promises or intentions expressed therein.”

The intended father disagrees. “As much as she thinks she has some right via intrautero bonding, I think these kids have a far greater right to be raised together as siblings with their genetic, biological parent,” the intended father’s lawyer, Robert Walmsley, said in an interview with The Daily Beast.

When contacted for comment, Walmsley said the surrogate’s lawsuit was news to him, and claimed Cook’s most recent contact with the intended father was allegedly a letter asking about her payment check. Cook’s contract stipulated she would receive $33,000 for acting as a surrogate, with $6,000 per additional child. The contract also had a reduction clause—whereby the intended father could request an abortion in the event of multiple pregnancies—which is commonplace for surrogacy arrangements using in-vitro fertilization.

Though Cook agreed in the contract to abort one of the fetuses if the intended father requested it, when the possibility became a reality, Cook refused. “They are human beings. I bonded with these kids. This is just not right,” Cook told the New York Post last month.

Walmsley again denied the allegation that his client had tried to pressure Cook to abort one of the fetuses and said while money associated with triplet care was a factor, “the primary motivating force was the safety of the surrogate and the children.”

Walmsley called the lawsuit’s demands “outrageous,” especially the suggestion that Cook should take one of the triplets, thereby separating the siblings.

“What are we going do? Get a referee, meet on the 50 yard line, and flip a coin? [My client] is not doing that. He’s keeping the three children.”

Cook is being represented by a well-known anti-choice lawyer, Harold Cassidy—which Walmsley hardly sees as coincidence. “[Cassidy’s] agenda is to stop surrogacy, to stop hundreds of thousands of childless individuals from having this science available to them, to prevent them from having kids at any cost.”

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Walmsley’s position is just as clear. Walmsley is the owner of the firm, Surrogacy International, and was one of the attorneys who argued for the intended parents before the state Supreme Court in Johnson v. Calvert. In that seminal case, the court decided that the surrogate mother, Johnson, who had no genetic ties to the child, also had no parental rights.

Cassidy responded to The Daily Beast: “This comment comes from a man who used a woman as an incubator for financial gain, then demanded that she terminate the life of one of the children she carried. When she refused to terminate that life, he then threatened to sue her for large money damages. So now he attempts to deflect his own indefensible conduct by attacking the attorney who [Cook] sought to help her defend the lives and rights of her children and her own interests against his egregious conduct.”

Cassidy represented surrogate mother Mary Beth Whitehead in the 1987 case over “Baby M,” the first time a U.S. court took up the question of surrogacy. Whitehead had conceived with donated sperm from the intended parents—a wealthy family in New Jersey—but refused to give up the child after she was born. Ultimately, the intended father retained custody of the child, but the state supreme court ruled that paid surrogacy was illegal.

In the last two decades, Cassidy has retained his interest in motherhood and the unborn, devoting his practice to (in his view) protecting pregnant mothers—in most cases by restricting access to abortion, and consulting with and defending state legislatures that pass laws that force women to undergo scientifically-questionable counseling as informed consent before an abortion.

“Surrogacy, as epitomized by the contract between [Cook and the intended father] is a plan to deprive a child of his or her mother, to create a motherless class of children, and to place custody of children without any regard for their best interests,” Cassidy said in a statement provided to The Daily Beast.

“In many ways [the intended father] is a victim, too,” Cassidy told The Daily Beast. “Doctors and surrogacy brokers stripped him of his life savings and left him in a position to think that he has to raise three children.”

There is no federal law regulating surrogacy, and state laws vary wildly (PDF). California is one of eight states that allow for legal contracts that compensate for gestational surrogacy—where a women carries a pregnancy to which she is not genetically linked—and the intended parents’ names can go on a birth certificate. In Michigan, New Jersey, New York, and Washington, paid surrogacy is illegal, and in Washington, D.C., it is a crime.

After reviewing Cook’s complaint, Joanna Grossman, Hofstra University law professor and author of Inside the Castle: Law and the Family in 20th Century America, said “the argument that California’s surrogacy law is unconstitutional has no merit.”

“The most likely scenario is that he gets all three babies and, as the only adult with parental rights, has the power to place any or all of them for adoption.”