Surrogacy Contracts, Abortion Conditions, and Parenting Licenses

By Dov Fox

Everything went fine the last time for Melissa Cook, when the 48-year old mother of four carried a child for a family back in 2013 to supplement her office job salary. This time was different. First were the triplets. She had been impregnated with three embryos, created using eggs from a 20-something donor and sperm from the intended father who paid for everything. Then, it was that the man, Chester Moore, turned out to be a deaf 50-year-old postal worker who lived with his parents. Finally, was that Moore asked Cook to abort one of the fetuses. He said that he had run out of money to support a third child and worried the high-risk multiple pregnancy would endanger the health of any resulting children.

Cook, who is pro-life, refused. A battle over parental rights of the triplets, all boys, began even before they were born (prematurely, at 28 weeks). Moore argued that his surrogacy contract with Cook, explicitly enforceable under California law, made clear that he was the sole legal parent. Cook sued for custody, notwithstanding her prior agreement that any children resulting from the pregnancy would be his to raise. She argued that the statute, by authorizing private contracts for gestation of a human being, reduces children to “commodities” for sale, and a surrogate like her to a “breeding animal or incubator.”

Yesterday, Judge Otis D. Wright II dismissed the case in its entirety. The 24-page order has not yet been picked up by the media. But it’s well worth the read, if not for its careful discussion of Younger abstention and related jurisdictional doctrines (which I won’t wade into here), then for its concise history of assisted reproduction. It includes extended quotations about pregnancy and parenthood by such authorities as Abram from Genesis and Phoebe from Friends. The Order makes clear that surrogacy agreements are “presumptively valid” in California, with “[n]o minimum levels of income, intelligence, age, or ability are required for either the surrogate or the intended parent(s).”

Judge Wright notes in a footnote: “Should Cook ultimately prevail, the Court is at a loss to imagine an intended parent in this state who would contract with a gestational surrogate, knowing that the woman could, at her whim, ‘decide’ that the intended parent or parents are not up to snuff and challenge their parenting abilities in court. Surely Cook’s normative world would be one far different today’s; after all, ‘[w]hat a far different experience life would be if the State undertook to issue children to people in the same fashion that it now issues driver’s licenses. What questions, one wonders, would appear on the written test?’ J.R. v. Utah, 261 F. Supp. 2d 1268, 1298 n.29 (D. Utah 2002)”.

So Moore will keep all three boys, including the one he had asked Cook to terminate as a fetus. He could not have required that she have an abortion against her contemporaneous objection, even if she had agreed to selectively reduce in the event of a multiple pregnancy. Now, most fundamental rights can be waived, as Glenn Cohen showed on pages 1185-94 of his article on “The Constitution and the Rights Not to Procreate.” But enforcing waiver of the abortion right, Larry Tribe argued back in 1985, risks exploiting a special vulnerability of women in a way that reinforces their unequal social and political status. So perhaps the abortion right cannot be waived, even as childrearing rights can be by entering into a surrogacy contract or giving a child up for adoption.

John Robertson has suggested an intriguing way of thinking about this problem in terms of remedies rather than enforcement. At pages 1868-75 of his article on “Precommitment Issues in Bioethics,” Robertson argues that agreements for embryo disposition and posthumous reproduction should be presumed valid and enforceable; the remedy wouldn’t be specific performance, however, but a corresponding level of damage awards. Along these lines account, women might be held to their agreements about abortion too, just not in a way that would ultimately require them to terminate a pregnancy (or not); breaking an abortion contract would instead impose damages. This approach might even support damages for the cost of medical treatment that a contract-breaching refusal to reduce a high-order pregnancy can be shown to have caused a resulting child to need.

It bears mention that Cook’s lawyer, Harold Cassidy,  also represented the surrogate, Mary Beth Whitehead, in the first U.S. court ruling on the validity of surrogacy. There, Whitehead was genetically related to “Baby M,” as she had named the child and as the case would  become known. The New Jersey Supreme Court declared such arrangements void as against the state’s public policy. But it also affirmed a “best interest of the child” analysis that, upon remand to family court, led the commissioning parents to be awarded custody with visitation to Whitehead. Cassidy was also architect of the campaign to overturn Roe v. Wade by appeal to the specious “post-abortion syndrome” argument that abortion harms women by causing depression and even suicide.

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This entry was posted in Abortion, Bioethics, Conscience, Dov Fox, Health Law Policy, I. Glenn Cohen, John A. Robertson, Liability, Reproductive Technology and tagged by Dov Fox. Bookmark the permalink.

About Dov Fox

Dov Fox is Professor of Law and founding Faculty Director of the Center for Health Law Policy and Bioethics at the University of San Diego School of Law. He has published dozens of articles in leading journals of law and medical ethics, most recently “Reproductive Negligence” in 117 Columbia Law Review 149 (2017). His current book project, Birth Rights and Wrongs, is under contract with Oxford University Press. His work has been featured in CNN, ABC, NPR, BBC, Reuter’s, Bloomberg, the Boston Globe, and the Washington Post. Fox is a regular columnist for The Huffington Post and contributor to the Bill of Health blog. He also serves on the advisory boards of the American Constitution Society and Appellate Defenders, the non-profit law firm that administers all appointed counsel for indigent defendants in California's Fourth Appellate District. Prior to teaching, Fox served as a law clerk to the Honorable Stephen Reinhardt of the U.S. Court of Appeals for the Ninth Circuit. He has also worked at the law firm of Wachtell, Lipton, Rosen & Katz; the consulting firm of McKinsey & Company; and the Civil Appellate Staff at the U.S. Department of Justice. Fox was awarded a Rhodes Scholarship to attend Oxford University, where he earned his DPhil and then received a Soros Fellowship for New Americans to attend Yale Law School, where he served as projects editor for the Yale Law Journal and all three years was awarded the prize for best student paper in law and the sciences.

3 thoughts on “Surrogacy Contracts, Abortion Conditions, and Parenting Licenses

  1. “[n]o minimum levels of income, intelligence, age, or ability are required for either the surrogate or the intended parent(s).” What has been conveniently excluded is the fact that regardless of biological status of the child, Intended parents are not screened WHATSOEVER. No background check, no drug testing, no psychological evaluations, no home-study… ALL of which are baseline requirements for an adoption. The surrogacy issue is not how to protect the intended parents, it’s how to protect innocent children from being born into potentially dangerous situations.

    As a surrogate myself I am not against surrogacy in concept, I’m currently 33 weeks pregnant with my new IP’s twins, but for everyone’s sake, the IP’s should be at least checked out to some extent. Unfortunately, I learned in the hardest way possible to do my own research and exactly what was at stake in the event I ever just took people at their word again. Some of the most depraved and manipulative people are very capable of coming off as charismatic and authentic. IP’s literally undergo less screening than a person trying to adopt a dog.

    That being said, for both of my surrogacy journeys I have had psychological testing, STD screening, home visitations, not to mention extensive lists of activities in which I can and can not engage included in my contracts, all so that I could be trusted to provide a hospitable environment to a child for 40 weeks. A child I grew to love and who was formed with such deliberate intention, the same child that, after 9 months of red flags, I was contractually committed to hand over to a man who would 3 years later die of a drug overdose in the same house where his daughter slept. Fortunately for her, the drug dealer (and only other present party) called the police instead of just leaving his lifeless body to be found by his daughter, or worse, taking advantage of a very vulnerable 3 year old child.

    What’s worse, is that the laws protected him and never considered her, or me for that matter. After all of the formalities experienced on my end, I assumed at least as much had been considered on his end, after all, 18 years is quite bit longer than 40 weeks. This of course is not the case. After the contract was signed and the pregnancy was confirmed I spent the subsequent 9 months in psychological turmoil as I witnessed the deterioration of the representations of this person who was to become this precious child’s “parent.” Suddenly each appointment a different lover replaced the original partner to whom I was initially introduced. Although they would alternate on occasion, the main relationship in his life would turn out to be a drug addicted, live-in dependent with a propensity for violent outbursts… and yet I’m the one that was screened. For 3 years he got to take advantage of such a beautiful gift, while I struggled deeply with the role I played in her ending up in this life. She deserved a shot at a good life, yet she was a victim at conception. A victim to a self-centered, manipulative narcissist that confused property with parenting; a victim to people who were too busy minding their own business to tell it like it is, who would later admit that they “thought maybe a child would change him”; a victim to a naive do-gooder that just wanted to help a “deserving” fellow human; and finally a victim to an opportunistic institution that rewards financial investment with the life of a human being.

    In my case alone, under adoption law, this man would have never been allowed to bring a child into that situation. The fact that it was later made clear that he was also abusing drugs, only helps to prove my point. The issue that uncapped needles were found within reach of the toddler on several occasions, and that she was actually holding one in her little hands just weeks before his death is only made more serious when the fact that he was, subsequent to his death, found to be both HIV and Hepatitis C positive.

    The issue is not selfish, emotional surrogates that just willy-nilly change their mind, the issue is an industry that overlooks the best interest of innocent children and well-intended women to so easily allow for children to become victims. So I despise of this oversimplification that surrogates are hung up on “minimum levels of income, intelligence, age, or ability for the intended parents.” The issue is that the children of surrogacy are not legally given even as much value as a dog in a shelter.

    If there is to be a meaningful change in surrogacy it has to start with the screening of intended parents. We act like what’s most important is that the intended parents maintain their rights as parents, don’t you think it will only further the success of this argument if you can reasonably know whether every intended parent does not have a history of drug abuse, violence, pedophilia or are living in an environment that is indicative of the like.

  2. You all are automatically assuming because the father is “deaf” that he is incapable of raising the triplets. So what do we do take all children that are born to people who are “deaf” or handicap away from them. That is discrimination against the handicap. Should we take all children away from parents who the public deemed unsuitable to be parents because of a handicap or because they spank their children. In that case we must take all children away from their parents who are deemed unfit, something this country doesn’t do until it is too late. Picking on the handicap is discrimination in its worse form. So what if he is 50 and lives with his parents — big deal. In today’s time that goes on all over this country.

    Plus you don’t know the full story of the “mother”. There is a lot more to her than you know. Maybe she is unfit, does she still work, does she still have custody of her other children, did she ask the doctor to implant the third egg, and the list could go on and on and personally at 48 she is too old to be bearing children. She entered into a legal binding contract and if she can break it, then anyone can break a legal binding contract. She did it only for the money and nothing else.

    Yes all people should be screened before surrogacy like they do for adoptions. In fact maybe all people should be screened before becoming parents period. So let’s take away another freedom — the freedom to be a parent where or not you have a handicap, the freedom to have an abortion, the freedom of speech, and the list goes on and on. While I’m not against abortion, I could never do it, but it is a woman’s body and she should have that right to decide, not you, not me and not the government. And for all those against abortion, why don’t you step up and adopt these babies that the people didn’t want, didn’t abort, but then murdered the live child.

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