A surrogate pregnant with triplets sued the genetic father (and intended parent) of the triplets she’s carrying, claiming that he demanded her to abort one of the fetuses while threatening her with financial ruin. 47-year-old Melissa Cook of California alleged that when she refused to abort one fetus, the genetic father of Georgia said he would place that child for abortion even if she would like to keep and raise the baby as her own. The pregnancy was achieved through in vitro fertilization, with sperm from the intended father and eggs from an anonymous 20-year-old donor.
Taking her alleged facts as true and nothing more, the story seems to raise both legal and ethical question of whether the genetic father has a right to demand abortion and whether such arrangement is ethical.
The Law of Surrogacy in California — Surrogacy Agreement
California allows commercial surrogacy. In the 1993 Johnson vs. Calvert case, the California Supreme Court held that the intended parents, as part of a gestational surrogacy agreement, should be recognized as both the legal and the natural parents. In a gestational surrogacy situation, the surrogate is not the biological contributor of the egg, but rather the carrier of the embryo that is made up of the intended father’s sperm and the intended mother’s egg and is then implanted into the surrogate’s uterus via in vitro fertilization. Furthermore, effective January 1, 2015, California Surrogacy Enabling Statute expressly provides for enforceable surrogacy contacts. Under this California law, the parties’ surrogacy agreement provides rules of parentage. Rather than biology or marriage, intent becomes the dispositive factor in parentage.
States have different standards on surrogacy laws. Each state has its own legal approach to surrogacy and surrogacy contracts. Some states make surrogacy contracts enforceable, while others forbid or even criminalize it. California is one of eight states that allow for legal contracts that compensate for gestational surrogacy and the intended parents’ names can go on a birth certificate. California does not regulate the surrogate arrangements as intensely as other state’s.
Can the Intended Father Demand Abortion?
The undisputed facts show that the parties entered into a surrogacy agreement. Based on the contract, Cook 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.
Since there is no federal law regulating surrogacy and California acknowledges enforceable surrogacy contracts, it comes down to whether the contract was valid and if so, whether the “reduction” clause is valid as well. The next question is whether any party breached the contract and if so, what remedies the court will decide for such breach.
Is the Surrogate Contract Valid?
While Cook claims that the agreement should be invalid, there are no facts to support her argument to entirely invalidate the parties’ contract. Among many allegations, Cook argues that the intended father asked the surrogate to stop going to the doctor so often because it was costing him too much money and he further asked her to abort one fetus.
However, the contract does not require the intended father to pay the surrogate’s medical expenses. The contract also provides the intended father the right to make a decision for selective reduction. The fact that Cook’s insurance does not cover the costs of surrogate pregnancy and that carrying triplet at the age of 47 should have given both parties for the need to address higher medical costs than usual and fair arrangement reflecting such expenses. The surrogate agreement should have been more carefully drafted to balance the equities to express the parties’ intent and circumstances.
A contract can be void when the contract involves illegal activity or is against public policy. If the same case had been brought in Kentucky, Cook would have had the right to void the contract, as Kentucky law gives the birth mother the right to void the contract if she changes her mind during the pregnancy or immediately after the birth.
Since California legalized commercial surrogacy and acknowledged surrogacy contracts enforceable by the statute, there is no ground for invalidity of Cook’s contract. Without any other clear ground for invalidity while considering the California Surrogacy Enabling Act and Calvert precedent, the court will not likely invalidate the surrogacy agreement.
Did the Parties Breach the Contract?
If the court finds the contract valid, the next question would be whether either Cook or the intended father has breached the contract. If the intended father breached the contract by refusing to make payments under the contract, Cook may be relieved of the duty to perform under the contract. If Cook had breached the contract by refusing to abort the third baby, the court will not order her to abort the baby but instead may award money damages to the intended father. In any case, the intended father would remain as the legal parent as long as the contract is valid.
A Take Away from Cook’s Case
In February 2, Cook brought a new federal lawsuit claiming that California’s Surrogacy Enabling Act is unconstitutional. She claims that the law reduces her to a “breeding animal or incubator,” and enforces the “commodification” of children. Apparently, Cook, once a proponent of surrogacy and one who voluntarily agreed to become a surrogate, changed her position into opposing to surrogacy, stating, “I no longer view surrogacy arrangements in the same favorable light I once did. Children derive a special benefit from their relationship with their mother,” and “I now think that the basic concept of surrogacy arrangements must be re-examined, scrutinized and reconsidered.” She is asking to be named the sole custodian of “Baby C”, and asked to be declared legal mother of Baby A and B.
Cook’s federal claims appear to raise an ethical question rather than a legal question. Although surrogacy raises a controversial issue of turning babies into commodities, surrogacy, when used as intended, fulfill many infertile couples’ dream to have their own children. While ethical debate continues, the court will decide the legal question.
The court will not likely pronounce the California Surrogate Enabling Act unconstitutional. However, some alarming facts suggest a take away for the legislators, the potential surrogates, and surrogate users. The fact that the intended father and surrogate never met in person nor spoke by phone; her age required weekly check ups because of a high risk pregnancy; the contract did not require the intended father to pay the surrogate’s medical expenses; the embryos were “sex-selected” so the surrogate would only give birth to boys; the contract gave the intended father the right to make decision for selective reduction, etc.
While none of these may be relevant or sufficient to forfeit the intended father’s parentage and parental right, Cook could have had a better protection for herself had these facts taken into consideration when making a decision for surrogacy arrangement and drafting the surrogacy contract.