Surrogate moms ask high court to stop ‘exploitation’ of women

By Ariana Eunjung Cha / The Washington Post

Melissa Cook’s story became headline news in 2015 when she was carrying triplets as a surrogate. The intended dad asked her to abort at least one of them, she says, because he couldn’t afford to raise them all. She refused and has been fighting for custody of the children in court ever since.

Cook and two other surrogate mothers — Gail Robinson and Toni Bare — are in Washington this week to call on the Supreme Court to provide more clarity on the rights of women and children in the controversial industry. The women, who have separately filed lawsuits in different states, say surrogacy contracts are exploitative to the birth mothers, create a class of women as breeders and commodify children.

The women’s attorney, Harold Cassidy, said in an interview that the nature of surrogacy contracts prevents “a child being placed where it’s in the child’s best interest.”

“It is surprising and disturbing,” Cassidy said. He said many lower courts have punted on the complex questions of surrogacy by making the issue simply about enforcing contracts. But when you are dealing with a child’s life, “there are rulings that have to be made.”

While the U.S. Supreme Court is unlikely to be influenced by a news conference, there is a patchwork of statutes on surrogacy in different states and lower courts have returned sometimes conflicting verdicts on the parental rights of surrogates. Experts have said such cases raise critical constitutional issues that need to be addressed. Influential groups such as the Family Research Council and the American Association of Pro-Life Obstetricians and Gynecologists have urged the court to consider the issue.

Cook has described her journey as a surrogate as a “horror story.” Through an agency, she had agreed to carry a child for a single man, known as “C.M.” in court filings, using his sperm and a female donor’s egg. During her pregnancy, however, her interactions with him made her question his ability to care for the children. The three children were placed with him after they were born.

An affidavit provided by C.M.’s sister describes him as “paranoid” and prone to “frequent anger fits.” She accused him of sharing a house with a relative who deals drugs and said he has disappeared from the house and left the children unattended for hours.

Cook has filed a petition with the Supreme Court regarding her case. In January, she lost an appeal to adopt the three babies when the U.S. Court of Appeals for the Ninth Circuit upheld a lower-court ruling that it lacked jurisdiction, denying her the ability to intervene in the triplets’ situation.

“When a mother knows that their child is entering into a situation that is not in their best interests or, as in my case, downright detrimental to them, they have a right to object,” Cook said in a statement provided in advance of a news conference on Wednesday.

An attorney for C.M. said the children “are doing phenomenal and are developing on schedule,” according to People magazine, and said the accusations in Cook’s filings are “a bunch of lies and false claims.”

Bare is speaking out publicly for the first time about her situation. She’s a surrogate from Iowa who sought to keep the child she carried. She had entered into a contract with Paul Montover to carry a child created from his sperm and a donor egg, for $13,000. However, she said she became concerned about Montover and his wife during her pregnancy. According to the Des Moines Register, she accused Montover of calling her husband, who is of Hispanic origin, “a dirty Mexican” and Montover’s wife of using the “n-word” to her. Bare is African American.

In February, the Iowa Supreme Court ruled that Montover is the baby’s biological father and will have permanent custody. Cassidy said she would be filing a petition with the Supreme Court this week or next week.

“When I was abused throughout my pregnancy by the ‘intended’ parents, including being subjected to ugly, profanity-laced racial comments, I had a moral obligation to my daughter not to place her in a home that teaches hatred. I could not allow that to happen,” she said in a statement.

Attorneys for the Montovers have argued that Bare voluntarily entered into the contract, which terminated her parental rights.

Gail Robinson experienced a more favorable, if mixed, outcome in court. Robinson, who carried twin girls from embryos created from donor eggs and her brother’s husband’s sperm, said she had been coerced into the agreement, and she sought custody of the children. In 2009, a New Jersey judge ruled that she is their legal mother despite the fact she is not genetically related. In 2011, another judge awarded full custody to the biological father but preserved Robinson’s visitation rights as a parent. That judge noted that both children bonded with the biological father and Robinson and did not question either one’s ability to parent, but according to NJ.com, said joint custody was not possible due to the fact that communications had broken down between the parties.