Custody case over triplets in California raises questions about surrogacy industry.

Is a Surrogate a Mother?

Is a Surrogate a Mother?

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Feb. 15 2016 5:00 PM

Is a Surrogate a Mother?

A battle over triplets raises difficult questions about the ethics of the surrogacy industry and the meaning of parenthood.


Photo illustration by Lisa Larson-Walker. Photos by Thinkstock.

Last year, a 47-year-old California woman named Melissa Cook decided to become a commercial surrogate. Cook is a mother of four, including a set of triplets, and had served as a surrogate once before, delivering a baby for a couple in 2013. According to her lawyer, Harold Cassidy, she’d found it to be a rewarding way to supplement the salary she earned at her office job. “Like other women in this situation, she was motivated by two things: One, it was a good thing to do for people, and two, she needed some money,” Cassidy says.

Michelle Goldberg Michelle Goldberg

Michelle Goldberg is a columnist for Slate and the author, most recently, of The Goddess Pose.

For her second surrogacy, Cook signed up with a broker called Surrogacy International. Robert Walmsley, a fertility attorney and part owner of the firm, says he was initially reluctant to work with her because of her age, but relented after she presented a clean bill of health from her doctor. Eventually, Surrogacy International matched her with a would-be father, known in court filings as C.M.


According to a lawsuit filed on Cook’s behalf in United States District Court in Los Angeles earlier this month, C.M. is a 50-year-old single man, a postal worker who lives with his elderly parents in Georgia. Cook never met him in person, and because C.M. is deaf, Cassidy says the two never spoke on the phone or communicated in any way except via email. In May, Cook signed a contract promising her $27,000 to carry a pregnancy, plus a $6,000 bonus in case of multiples.* In August, Jeffrey Steinberg, a high-profile fertility doctor, used in vitro fertilization to implant Cook with three male embryos that were created using C.M.’s sperm and a donor egg. (According to the lawsuit, the gender selection was done at C.M.’s request.) When an egg donor is under 35, as C.M.’s was, the American Society for Reproductive Medicine strongly recommends implanting only one embryo to avoid a multiple pregnancy, but some clinics will implant more to increase the chances that at least one will prove viable. In this case, they all survived. For the second time in her life, Cook was pregnant with triplets. And soon, the virtual relationship she had with their father would fall apart.

Cook and C.M. are still strangers to each other, but they are locked in a legal battle over both the future of the children she’s going to bear and the institution of surrogacy itself. Because she’s come under pressure to abort one of the fetuses, Cook’s case has garnered some conservative media attention. This story, however, is about much more than the abortion wars. It illustrates some of the thorniest issues plaguing the fertility industry: the creation of high-risk multiple pregnancies, the lack of screening of intended parents, the financial vulnerability of surrogates, and the almost complete lack of regulation around surrogacy in many states.

The United States is one of the few developed countries where commercial, or paid, surrogacy is allowed—it is illegal in Canada and most of Europe. In the U.S., it’s governed by a patchwork of contradictory state laws. Eight states expressly authorize it. Four statesNew York, New Jersey, Washington, and Michigan—as well as the District of Columbia prohibit it. In the remaining states, there’s either no law at all on commercial surrogacy or it is allowed with restrictions.

California is considered a particularly friendly place for surrogacy arrangements. In 1993, a California Supreme Court ruling, Johnson v. Calvert, denied the attempts of a gestational surrogate named Anna Johnson to assert maternal rights. (A gestational surrogate is one like Cook who has no genetic relationship to the fetus or fetuses she caries.) What mattered in determining maternity, the court ruled, were the intentions of the various parties going into the pregnancy: “Because two women each have presented acceptable proof of maternity, we do not believe this case can be decided without enquiring into the parties’ intentions as manifested in the surrogacy agreement,” the court said. It was a victory for Walmsley, who represented the couple who’d hired Johnson as their surrogate.


A 2012 California law, which went into effect this year, codifies procedures for surrogacy agreements; among other things, it specifies that both surrogates and intended parents must have their own lawyers. If a contract is executed in accordance with the law, then a gestational surrogate relinquishes any claim to legal parenthood.

“Surrogacy’s been distinguished as something completely different from adoption,” says Lisa Ikemoto, a UC Davis School of Law professor who specializes in reproductive rights and bioethics. Unlike in adoption, there’s no legally required screening of intended parents. A pregnant woman who offers to give her baby up for adoption can reconsider her decision; in California, a pregnant surrogate cannot. To a large extent, the law “puts a lot of trust in a surrogacy center to make sure that these things are carried out appropriately,” Ikemoto says. “It’s very industry-friendly, and by ‘industry,’ I’m referring to the fertility industry.”

In California, that industry is known for pushing boundaries. It is the state that gave us the so-called Octomom, Nadya Suleman, who gave birth to octuplets in 2009 after her fertility doctor implanted her with 12 embryos. Also in 2009, the Modesto-based surrogacy agency SurroGenesis was revealed to have defrauded clients of millions of dollars, leaving some intended parents unable to pay the surrogates who were carrying their children. The New York Times reported that one surrogate, pregnant with twins and confined to bed rest, received an eviction notice after the couple who had hired her were unable to reimburse her for lost wages.

Three years later, in 2012, a prominent California surrogacy broker named Theresa Erickson was sentenced to prison for leading an international baby-selling ring. Erickson, a former board member of the American Fertility Association, recruited surrogates and sent them to Ukraine, where they were implanted with embryos created from donated eggs and sperm. She put the resulting babies up for adoption, telling prospective parents that they were the result of surrogacies in which the original intended parents had backed out. Erickson collected between $100,000 and $150,000 for each baby. After she was sentenced, she told NBC San Diego that her case represented the “tip of the iceberg” of a corrupt industry.


Even when it’s not corrupt, the industry often tests the limits of bioethics. Steinberg, the doctor who performed Cook’s embryo transfer, was last in the news for marketing embryo screening for hair, eye, and skin color. “This is cosmetic medicine,” he told the Wall Street Journal. “Others are frightened by the criticism but we have no problems with it.” He was a pioneer in the use of IVF for sex selection, and his clinic draws clients from countries around the world where the practice is banned.

“We don’t have good oversight of the whole fertility industry,” says Marcy Darnovsky, executive director of the Center for Genetics and Society in Berkeley, California, and a longtime women’s health advocate. “It’s very underregulated, and we need to be taking that really seriously. California is a surrogacy-friendly state and thinks that it’s doing surrogacy the right way. But there have been enough problems in California that clearly something is not right.”

* * *

From the beginning, the arrangement between Cook and C.M. appears to have been plagued by miscommunication. Cassidy acknowledges that Cook only gave a cursory read to the 75-page surrogacy contract before signing it. Walmsley of Surrogacy International drafted the contract; he is also serving as C.M.’s attorney. (At the time, Cook was being represented by a lawyer named Lesa Slaughter, paid for by C.M.) Cook contends that she didn’t know about the contract’s provision, common in surrogacy agreements, allowing C.M. to request a selective reduction, in which one or more of the fetuses in a multiple pregnancy is aborted. (In reporting this story, I had multiple conversations with Cassidy and Walmsley, but neither allowed me to interview their clients directly.)


According to Cook’s lawsuit, before the embryo transfer, C.M. assured her via email that he could accept responsibility for all the children that might result. But while C.M. had been prepared for twins, he didn’t want triplets. Indeed, her suit says, soon after her pregnancy was confirmed, it became clear that C.M. had exhausted his savings, and wasn’t sure he could care for more than one baby.

The surrogacy contract calls for Cook to rely on her own insurance to pay for most of her obstetric care during the pregnancy, while C.M. was responsible for fees charged by Steinberg’s clinic, the Fertility Institutes. Cook’s suit quotes an email that C.M. allegedly sent to the clinic on Sept. 17, saying, “Please try to make her visits less often, because I get a bill that costs me a lot of money. ... It causes me financial problems not to be able afford triplets maybe even twins that worries me so bad for real.” The next day, the lawsuit contends, C.M. emailed Walmsley: “I never anticipated something such worse like draining my finances so fast. ... I do not want to abort twin babies, but I felt that is such possible to seek aborting all three babies. I do not want to affect [Cook’s] health. I do not have any more money in the bank, and my job does not pay great biweekly.”

Cook was extremely upset by what she was hearing from C.M. “You need to make a decision if you want any of these babies so that I know what to expect,” she wrote to him. He responded that he wanted twins. A few days later, the lawsuit says, he instructed Cook to abort one of the fetuses. I would decide to select – reduct [sic] one of three babies, soon as I need to tell my doctor and my lawyer before 14th to 17th weeks,” he emailed her.

Cook, however, is opposed to abortion. According to the lawsuit, she offered to raise one of the babies herself, but C.M. rejected that idea, and suggested that instead he’d put one up for adoption. Hoping to persuade Cook to relent, Walmsley wrote her a letter, later quoted in the New York Post, threatening her with financial damages for breach of contract if she didn’t consent to a reduction: “As you know, his remedies where you refuse to abide by the terms of the agreement, are immense [and] include, but are not limited to, loss of all benefits under the agreement, damages in relation to future care of the children [and] medical costs associated with any extraordinary care the children may need.” Triplet pregnancies are dangerous for mothers and babies alike—according to the American Society of Reproductive Medicine, in 20 percent of triplet cases, at least one of the children will be born with a major, long-term disability. Walmsley’s letter suggested that Cook could be liable for a lifetime of serious medical bills.


As relations between Cook and C.M. worsened, she came to doubt his ability to care for the children she was going to have. Her lawsuit quotes a note that Walmsley wrote to Slaughter, the lawyer who represented Cook when she signed the contract: “Triplets for a married couple is hard enough. Triplets for a single parent would be excruciating; triplets for a single parent who is deaf is—well beyond contemplation.” According to Cassidy, Cook initially assumed that Surrogacy International had done some sort of investigation to assess C.M.’s ability to parent, and was dismayed when she realized that wasn’t the case. As Walmsley concedes, Surrogacy International runs criminal background checks on its clients, but doesn’t evaluate them beyond that; no one ever visited C.M.’s Georgia home. “C.M. is not capable of raising three children by his own admission and may not be capable of raising even one or two children,” Cook’s lawsuit states.

Facing financial ruin and unsure what would become of the triplets she was carrying, Cook went public. She reached out to the anti-surrogacy activist Jennifer Lahl, president of the conservative Center for Bioethics and Culture and director of the documentary Breeders: A Subclass of Women? Lahl, in turn, put her in touch with the Post, which eagerly reported on the story of a woman fighting a coerced abortion. Cook also contacted Cassidy, who represented surrogate Mary Beth Whitehead in the landmark 1987 Baby M case, when Whitehead made international headlines fighting for custody of the baby girl she’d given birth to.

To Cassidy, a devout Catholic who once studied for the priesthood, surrogacy flouts natural law. Some of his argument on Cook’s behalf is grounded in a romantic defense of motherhood that is unlikely to sway those who don't share his social conservatism. “The cherished role of a mother and her relationship with her child, at every moment of life, has intrinsic worth and beauty; that relationship, its unselfish nature and its role in the survival of the race is the touchstone and core of all civilized society,” he writes in the lawsuit. “Its denigration is the denigration of the human race.” Surrogacy, Cassidy writes, reduces a woman to a “breeding animal” rather than a “whole person who bonds, loves, has emotions or a deep sense of moral, ethical, and emotional commitment to the children she carries and bears.”

One needn’t venerate traditional motherhood, however, to be troubled by Cook’s situation. There are also fundamental feminist issues at stake. Coerced abortion is as much a violation of reproductive autonomy as coerced pregnancy. And whether or not one believes that surrogacy should be legal, Cook’s predicament shows how few protections there are for surrogate mothers when their agreements go bad.

* * *

While Cook has continued to receive the monthly payments she is owed for her surrogacy, Walmsley argues that his client would be within his rights to stop them. “It’s becoming ever more difficult for him to literally pay her when she’s sitting here suing him,” Walmsley says. “He might be a bigger man than me, because if somebody were suing me and trying to take away my kids, I would have a difficult time sending them money.”

It’s also unclear who is going to pay Cook’s medical bills. Her insurance carrier, it turns out, does not cover surrogate pregnancies as it does other pregnancies, so she must reimburse the insurance company for half of her expenses, up to the total compensation she’s receiving as a surrogate. (Cassidy maintains that Cook didn’t understand this when she signed the contract.) Walmsley says his client is covering the reimbursements, but Cassidy insists he has not. According to the lawsuit, the insurance company, seeking to recoup its payments, has issued a lien against Cook’s surrogacy fees.

Cook’s doctor recently instructed her to stop working and avoid stress. She’s developed gestational diabetes and, according to Cassidy, may be put on bed rest. She is currently living on disability insurance. “Melissa Cook is now facing a high risk pregnancy which makes the compensation under the contract illusory,” says the lawsuit. “In fact, there is a chance that she will be uncompensated.”

For both sides, however, the heart of the conflict is about custody, not money. With Cook entering her third trimester, the question of abortion has become moot. Barring a stillbirth, there will be three babies. (Cook will reach 32 weeks in March, which is considered full term for triplets.) Now the dispute is about what happens to them. According to Walmsley, C.M. now intends to raise all of them, and it’s immaterial that he was worried about how he’d cope. “Let’s be real here,” Walmsley told me. “Am I prepared to raise triplets? Probably not. Are you?” That doesn’t mean, he says, that C.M. would separate them. “He wants to have his three children and go experience life,” Walmsley says. “That’s his goal, that’s his desire, and unfortunately it’s become a nightmare.”

Cassidy says Cook sympathizes with C.M., but she doesn’t feel she can turn over the children to him. She wants custody of one of them—the one that C.M. wanted her to abort, referred to as Baby C in the complaint. And she’s seeking a hearing to determine the best interests of the other two, whether that means living with their father or with her.

Under current California law, Cook has little chance of successfully asserting parental rights. So Cassidy is hoping to take on the law itself. On Feb. 3, he filed a case in federal district court asking, among other things, for a ruling that California’s surrogacy law violates Cook’s rights, as well as those of the triplets, under the Constitution’s equal protection clause. Cook, he argues, has a fundamental right not to have her parental claims severed unilaterally. Furthermore, Cassidy maintains, equal protection means that the children deserve to have their custody arrangements decided not by a business contract but by an inquiry into their best interests.

Meanwhile, in a separate legal battle, C.M. has filed suit in family court asking to be declared the sole parent of the children Cook is carrying. Cassidy has filed an answering motion, though these documents, unlike the federal lawsuit, are sealed.

Walmsley says that he’s outraged by what Cook is putting his client through. No one, he argues, has the right to challenge C.M.’s fitness as a father: “The day we are telling somebody they are not a parent because they have some disability, or they don’t meet somebody else’s economic expectations, is going to be a cold day in hell in our society.” C.M., he says, “has been going through this process for a matter of years, and he’s doing this because he so desperately wants to have children and a family. That’s why he’s doing it. And then suddenly somebody’s saying, I’m going to try to undermine you and deprive you of having your children and your family?”

Most experts think that Cook will have a hard time convincing any court to give her the kids. Cassidy has successfully made arguments for the maternal rights of surrogates in New Jersey, but that is much friendlier legal terrain than California. “Who the parents are in this case turns on the surrogacy agreement,” says Joanna Grossman, a professor of family law at Hofstra University and co-author of Inside the Castle: Law and Family in 20th Century America. “If it’s enforceable, those are his kids. If he wants to take all three of them and give one of them up for adoption, there’s no reason he can’t do that.”

Legally, the court cannot weigh the children’s best interests when deciding if Cook is their legal mother; best interest arguments only come into play in a custody dispute between people who are already recognized as legal parents. “You’re either a parent or you’re not a parent,” says Walmsley. “You don’t determine whether you’re a parent based on the child’s best interest or your economic well-being. Otherwise, I’m going to go to skid row and I'm going to start yanking kids from anyone who is below a certain economic level.”

* * *

Cassidy’s quest to assert Cook’s maternal rights may be quixotic. But for him, this is a profound fight over the meaning of family. It’s about whether society values business contracts over the sacred bond between mother and child. That bond is at the core of his quirky social conservatism, which has led him to work against abortion but also, in some cases, against adoption, an institution usually beloved by pro-lifers.

Part of the legal team that helped free the wrongly imprisoned boxer Rubin “Hurricane” Carter, Cassidy first ventured into family law working on behalf of women who regretted giving up children to adoption. While handling these cases, he says, he started hearing from women who mourned their abortions. “When I was doing the work for the women who lost children to adoption, there were instances where I could actually get a baby back,” he says. “When women started calling me with incidents in which they were coerced into abortion, I couldn’t get the baby back. They killed the baby.” Mother Jones published a 2011 feature on his role in the anti-abortion movement: “For almost two decades, Harold Cassidy has quietly advanced the pro-life cause by giving legal shape to the stories of women who terminated their pregnancies and came to regret it.”

It was Cassidy’s work for adoptive mothers that led him to represent Mary Beth Whitehead. In 1986, Whitehead, a high school dropout and mother of two, gave birth to a baby girl she had conceived through artificial insemination with William Stern, whose wife had multiple sclerosis and was afraid to risk a pregnancy. Whitehead was paid $10,000, but once the baby—her biological daughter—was born, she felt fiercely attached. At first, she surrendered the girl, but then she showed up at the Sterns’ house, saying that she was suicidal and begging to take the baby for just a few days. The Sterns gave in, and Whitehead fled to Florida with the baby; she hid out there for nearly three months before police found her and took away the infant, known as Baby M.

An epic custody fight followed—the first contested surrogacy case in American history. According to the New York Times, Cassidy framed his argument as “a defense of motherhood and sought to show that the forced separation of mother and child would lead to emotional trauma for both.” Ultimately, William Stern won custody, largely because of questions about Whitehead’s mental stability—she’d threatened to kill the baby if she couldn’t keep her. But the New Jersey Supreme Court unanimously invalidated the surrogacy contract, calling the payment of money to a surrogate mother “illegal, perhaps criminal, and potentially degrading to women.” Whitehead was declared the legal mother and granted visitation rights, and Stern’s wife’s adoption of the baby was voided.

“Under the contract,” the court said, “the natural mother is irrevocably committed before she knows the strength of her bond with her child. She never makes a totally voluntary, informed decision, for quite clearly any decision prior to the baby’s birth is, in the most important sense, uninformed, and any decision after that, compelled by a pre-existing contractual commitment, the threat of a lawsuit, and the inducement of a $10,000 payment, is less than totally voluntary.” The court also criticized the contract’s “total disregard of the best interests of the child. There is not the slightest suggestion that any inquiry will be made at any time to determine the fitness of the Sterns as custodial parents, of Mrs. Stern as an adoptive parent, their superiority to Mrs. Whitehead, or the effect on the child of not living with her natural mother.” Commercial surrogacy remains illegal in New Jersey.

The practice of surrogacy has changed significantly since the Whitehead case. The first successful gestational surrogacy—a surrogacy using a third-party donor egg—happened in 1985, the same year Baby M was born. Since then, gestational surrogacy has become the norm, eliminating the need to take a child from his or her genetic mother. Even in states with liberal surrogacy laws, a traditional surrogate like Whitehead might be able to assert parental rights, but a gestational surrogate cannot. Susan Appleton, a professor at Washington University School of Law, says of Cook, “Women in her position are not presumptively legal mothers.”

This presumption is at the heart of Cassidy’s challenge. He argues that the mother-child bond is not dependent on genetics. “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,” he writes in the lawsuit. “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.”

Cassidy made an argument like this, with partial success, in a major 2009 case dealing with so-called altruistic—or unpaid—gestational surrogacy, Robinson vs. Hollingsworth. That case, also in New Jersey, involved a gay couple, Donald Robinson Hollingsworth and Sean Hollingsworth, and Donald’s sister, Angelia Robinson. Robinson carried twin girls created with embryos made from donor eggs and her brother-in-law Sean Hollingsworth’s sperm. After the girls were born, in 2005, they were turned over to their fathers. While Robinson was initially able to visit them, her relationship with her brother and his husband soon deteriorated. She claimed that her brother—who employed her in his accounting firm—had coerced her into volunteering for the surrogacy. After returning to the Baptist faith of her childhood, she denounced homosexuality. In 2007, she sued for custody.

Ultimately, she lost. But Cassidy succeeded in having her declared the legal mother of the twins, and in getting a judge to decide the case on the basis of the best interests of the girls instead of the stipulations of the surrogacy contract. (Robinson retained visiting rights.) That, however, was in New Jersey. Obtaining a similar ruling in California, in light of the 2012 law, will be much more difficult. If Cassidy is able to do it, it will impact the practice of commercial surrogacy nationwide, making it far more insecure for intended parents, who won’t be assured of retaining custody of the children they create.

For some who long for children, this would be devastating. “When I was in law school, I learned that bad facts make bad law,” says Diane Hinson, founder of Creative Family Connections, a law firm and surrogacy broker in Maryland. “I hope that a case like this doesn’t result in that, because there are so many people who couldn’t build families without gestational surrogacy.”

* * *

Yet even those who believe that commercial surrogacy should be legal see problems with leaving it totally to the discretion of the market. “The question for me is to what extent should we be using contracts to deal with conceptions, pregnancy, delivery, and transferring of parental rights, especially in a commercial setting,” says Lisa Ikemoto. “Maybe we’re going a little too far.”

Art Caplan, who directs the division of medical ethics at NYU’s Langone Medical Center’s Department of Population Health, suggests that, as in an adoption, prospective parents hiring a surrogate should be subject to in-person vetting. “If you’re going to permit surrogacy for money, there ought to be a home visit like we see with adoption to make sure the person has a home, isn’t a child molester, has resources to raise a kid, has made provisions for what will happen to the kid if they die during the pregnancy or after,” he says. Caplan also suggests that there should be a process allowing surrogates to assert parental rights in certain circumstances—if, for example, the intended parent’s competency comes into doubt, or if he or she commits a crime. “I can imagine a lot of situations where you might want to restore legal status to the surrogate in the best interest of the child,” he says.

Right now, that mechanism doesn’t exist. Walmsley argues that it shouldn’t because it would endanger surrogates by burdening them with unwanted legal responsibility for the children they carry. “I don’t want intended parents causing these children to be conceived and then saying, ‘We changed our minds,’” he says. “We wouldn’t be here if it wasn’t for [C.M.]. He put this together, he used his sperm, he got the eggs, he put this into motion, and he should be the sole person that bears the responsibility all across the board.”

Whether you agree with this depends on your understanding of what it means to be a parent. It depends on whether you believe that pregnancy can ever be merely a service instead of a relationship. Cassidy insists that it cannot. “A woman can’t just turn a child over to anybody,” he says. “You just can’t do it.” But Cook signed a contract, and she may have to.

Correction, Feb. 19, 2016: This article originally misstated that Melissa Cook’s surrogacy fee was $33,000, plus a $6,000 bonus in case of multiples. It was $27,000, plus a $6,000 bonus for multiples.