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Illustration by Marne Grahlman

An Abortion, a Custody Fight, a Legal Storm: Inside a Surrogacy Gone Haywire

Cole Kazdin

Cole Kazdin

Melissa Cook, a surrogate, is pregnant with triplets. Their intended father and sperm donor wanted her to get an abortion. She refused now and she wants custody. Cook has filed a federal lawsuit that could change surrogacy laws for better or worse.

Illustration by Marne Grahlman

Melissa Cook once had a rosier view of surrogacy. She has four children of her own, and had been a surrogate once before, paid to carry and give birth to someone else's child.

Now, at 47, she's a surrogate again, pregnant with triplets. But this time, she's experiencing what she describes to her lawyers as, "the dark side of surrogacy." Cook claims that a few weeks into her pregnancy, the sperm donor and father-to-be asked her to abort one of the triplets, saying he wasn't capable of raising three children.

The man who hired Cook, referred to in court papers by his initials C.M., is a single man, living in Georgia, a postal worker, who lives with his elderly parents and is deaf.

He provided his own sperm, and used an anonymous egg donor. Three of the resulting embryos were transferred to Cook's uterus.

They signed a contract and Cook was to be paid $27,000, with an additional $6000 for multiples.

When C.M. asked for the abortion, Cook refused.

"I am pro-life and I am not having an abortion," she responded. "They (the babies) are all doing fine." She offered to raise the third baby herself. C.M. continued to press for the abortion.

It made her start to question the entire arrangement.

Read More: The Strange Hell Women Put Themselves Through to Donate Their Eggs

Earlier this month, Cook filed a federal lawsuit asking that she be declared the legal mother of the unborn triplets, even though she has no genetic relation to them, challenging the very constitutionality of California's surrogacy statute. She says current California law reduces her to a "breeding animal" and commodifies children.

"She can't just turn these three children that she's cared for over to someone who can't care for them," says Harold Cassidy, Cook's attorney. "She has, in her mind, a moral, ethical and legal obligation to do what's best for these children."

According to Cook's lawsuit, "C.M. depleted his life savings paying the infertility doctors, paying the surrogacy broker, paying the anonymous ova donor, paying the lawyers and putting money into trust for the surrogate." Cook fears C.M. will have no real means to raise the triplets.

"There are intrinsic harms here that can't be cured," Cassidy says. "This uses a woman and discards her."

But C.M.'s attorney, Robert Walmsley, says the request to terminate one of the pregnancies was for health reasons.

"Once you've achieved a pregnancy, I will guarantee you nobody wants to terminate the pregnancy," Walmsley says. "They do it because of necessity or risk. In this case, he asked her after getting medical advice from her specialist and her doctors. The medical specialist was urging her."

Walmsley claims there were concerns about premature birth, physical abnormalities, even potential risks to Cook, carrying all three to term. So C.M. requested the abortion.

"Triplets are always more risky than carrying a single child," says Cassidy. "But that has never been thought to be a reason to kill one or more of them." He adds that they are "consistently healthy and they are excellent weights."

There's a clause in the 75-page surrogacy contract Cook and C.M. signed saying that the parent—in this case C.M.—has the right to request an abortion. But, according to Walmsley, the contract also stipulates that the ultimate decision is the woman's.

"He asked her, and she refused," Walmsley says. "Okay, he accepted it. From the standpoint of the law, they're his kids. But she's carrying them. A woman has the right to terminate her own pregnancy," adding as an aside, "At least I still think that's the law."

Some states have outlawed surrogacy altogether, some states allow it but don't allow surrogates to be paid. Throughout much of Europe, surrogacy is prohibited. There have been cases in this country where a surrogate flees with the child after giving birth.

Cook is 28 weeks pregnant, so abortion is off the table. The custody battle Cook is now waging may also be moot.

The law in California is not on her side. In a surrogacy arrangement where the woman carrying the children is not genetically related to them—she didn't supply the egg, as is the case here—and if she is not the intended parent, she has no rights in parentage. She gets paid, she hands over the children after they are born. End of story.

In fact, the current law was established in part by a landmark California Supreme Court case argued by Walmsley himself in 1993. It determined that intent matters—the intended parents are the legal parents.

This isn't Cassidy's first rodeo either. Cassidy has argued against surrogacy for decades and represented Mary Beth Whitehead in the famous Baby M case in 1986—the nation's first court ruling on surrogacy. And while in the end, the court in that case gave primary custody of the child in question to the intended parents, it ruled that the surrogacy contract was illegal and that the practice itself was "perhaps criminal, and potentially degrading to women."

Mini documentary on the Baby M case

Cassidy argues that the very nature of carrying a child—even if the woman is not genetically related—establishes motherhood, and he refers to Cook over and over as the children's "mother."

"Why are we planning in the advance of conception, on purpose, to deliberately deprive children of a mother?" asks Cassidy. "I believe there should be a moratorium on all surrogacy until we study what harm we've already caused ... When did we decide that children don't need mothers? When did we decide that mothers provide no particular benefit to children?"

Cook's complaint attests the California statute "promotes the buying and selling of children" and "creates a breeding class of women," that it provides "no protection for the mother ... and uses her as if she is an incubator or breeding animal."

It outlines the risks associated with the hormones Cook was instructed to take before becoming pregnant, as well as the risks of being a 47-year old pregnant woman.

Read More: Why is Sperm So Damn Expensive?

But didn't Cook choose to do this? She was paid, she had been a surrogate before, she knew how her age might impact the pregnancy and her health.

"To say that a woman can't enter into an agreement and know what she's doing is offensive in my opinion," says C.M.'s lawyer, Walmsley.

Cassidy refers to himself on his website as a "defender of the rights of pregnant mothers." This extends to going after abortion providers in cases where women have come to regret an abortion.

"If you want my take on it," says Walmsley, "It's a political platform. It's been that way from Day 1. The attorneys are deeply associated with the Roman Catholic Church."

"Abortion has nothing to do with this case anymore," Cassidy insists. "This case is about surrogacy. It's about children. It's about exploitation of women. [The children] have a right to get to know, love, and build a relationship with their mother. The woman who carried them and gave birth."

Surrogacy laws vary from state to state. Some states have outlawed surrogacy altogether, some states allow it but don't allow surrogates to be paid. Throughout much of Europe, surrogacy is prohibited. There have been cases in this country where a surrogate, not wanting to give up a baby, has fled to a state where surrogacy is illegal thereby becoming the legal mother once she gives birth.

The questions surrounding surrogacy have no easy answers. Does the very nature of surrogacy take advantage of women of lower socioeconomic classes who need the money? What effect would a moratorium on surrogacies have on same-sex couples—many of whom look to surrogacy as their only option to have a biological child?

Cassidy wouldn't comment on the issue of same-sex parents. Were Cassidy's case to be argued in court, the result could have a major effect on same-sex or infertile couples hoping to use surrogacy in the United States.

"There are intrinsic harms here that can't be cured," Cassidy says. "This uses a woman and discards her."

"I've been doing this for almost 30 years now," Walmsely argues. "Hundreds and thousands of surrogacy arrangements and this is the only one that I've had a problem on."

According to Walmsley, a family court judge last week awarded custody of all three babies to his client, C.M. Cook says that's not the case and that this is far from over. The family court documents are confidential.

"They could appeal," says Walmsley. "I assume they will. And worse yet is if she does something. That's my biggest nightmare. [That she] tries to flee."

Cook has stopped working and said in a statement that she is on doctor-ordered rest. She could give birth as early as three to six weeks from now.

"She's prepared to take them home," Cassidy says. "She is prepared to let him [C.M.] visit. She wants to do what's best for these children."

"We're not wanting to make a publicity circus out of this," says Walmsley. "They are. And they are because they have a political platform they're operating on. We don't. Our platform is my client wants to have his kids and move on and live happily ever after."