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Sunday, May 26, 2024 | Back issues
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After Fighting Abortion Demand, Surrogate Mom Demands Custody

LOS ANGELES (CN) - A surrogate mother who refused the father's demand that she abort a triplet sued Los Angeles County officials this week, claiming the state's surrogacy law unconstitutionally reduces her to a "breeding animal or incubator," and enforces the "commodification" of children.

Melissa Kay Cook, 48, claims California's Surrogacy Enabling Statute encourages the buying and selling of children while reducing surrogate mothers to a "breeding animal or incubator," who have no say in the pregnancy or parental rights.

In her Feb. 2 federal lawsuit she demands that her name be put on the birth certificates.

Cook's triplets, all boys, are due in March. She says their biological father has admitted he's incapable of raising them. She says the father, C.M., is a deaf, single 50-year-old postal worker who lives with his elderly parents in Georgia.

Cook claims Santa Barbara-based Surrogacy International solicited her to be a surrogate and its part owner, attorney Robert Walmsley, drafted a 75-page "In Vitro Fertilization Surrogacy Agreement" that she signed on May 31, in which she agreed to bear three male children for C.M.

Neither Surrogacy International nor Walmsley are defendants in the federal lawsuit. The defendants are the director of the L.A. County Department of Public Health, the department's medical director, and the county clerk.

Cook filed a similar lawsuit on Jan. 4 in Superior Court.

Two days later, C.M. brought a parentage action in a Los Angeles family court, seeking an order declaring him the father, which is required under California's surrogacy laws, his attorney Walmsley told Courthouse News.

The civil case was dismissed after judges decided they wanted both cases heard in family court and Cook filed a counterclaim in the confidential proceeding.

Walmsley says C.M. wanted twins and Cook pushed him to agree to triplets.

"She urged my client and the doctor to do three," Walmsley said in an interview. "Do three. And he said, 'No I think we should just do two.' And she was pushing it. She pushed it."

Walmsley said that in hindsight C.M. made two mistakes: working with Cook and "capitulating to her urge to transfer three" embryos into her womb.

Walmsley acknowledges that C.M. asked Cook to abort one of the fetuses, but said doctors were telling Cook the same thing, because "there were indications of abnormalities."

Walmsley added that Cook has been a surrogate before and knew what she was getting into. He said Cook offered to go away if C.M. let her keep one of the babies, which Cook corroborates in her lawsuit: "And my client said, 'Are you out of your mind, I'm not separating my kids.' He's not going to do that."

Walmsley said C.M. simply wants to get custody of his children and move on, and that he's fed up with the legal maneuvering of Cook and her attorney, Harold Cassidy.

Cook said in a statement Wednesday that she has been ordered not to work, is resting as much as possible and taking medication to prevent early contractions.


"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," Cook said in the statement. "I now think that the basic concept of surrogacy arrangements must be re-examined, scrutinized and reconsidered."

In her federal lawsuit, Cook says that to prepare for the pregnancy she surrendered her body to a drug regimen required by contract: She took birth control pills and daily injections of a hormone suppresser to sync her cycles with the anonymous egg donor's. She moved on to estrogen and progesterone shots to thicken the lining of her uterus and increase the chances of pregnancy.

"On August 17, 2015, Dr. Jeffrey Steinberg, working at Fertility Institute, in Encino, California, transferred three 6-day-old embryos into the uterus of Melissa Cook who would turn forty-eight years old during her pregnancy," the complaint states. "Those embryo transfers made with a 47-year-old woman violated accepted standards of medical practice."

Neither Steinberg nor the Fertility Institute are defendants in the federal lawsuit.

A few weeks into the pregnancy, Cook says, C.M. told the Fertility Institute he couldn't afford her weekly appointments at its clinic, but its doctors said the checkups are necessary because "the pregnancy is such a high risk."

The same day, Cook says, C.M. emailed Walmsley that he couldn't afford her weekly checkups and was considering forcing Cook to have an abortion.

"It then became apparent that 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," the complaint states.

Cook also claims that Surrogacy International had not bothered to do a "home study" of C.M. to determine if he's capable of raising three children - which is not required by the California surrogacy law.

Then C.M. emailed her and told her he wanted her to abort one of the babies, Cook says.

"C.M. advised her that he was exercising a term under the surrogacy contract for what the contract referred to as a 'Selective Reduction,'" the complaint states.

Cook responded the next day: "I am pro-life and I am not having an abortion. They are all doing just fine," according to the lawsuit.

Cook says she told C.M. she would love to adopt the third child, but he insisted that she abort it and that it was his decision.

The surrogacy contract gives all the power to C.M., Cook says, including the right to demand an abortion and sue her for damages if she does not comply.

She says her situation illustrates why surrogate pregnancies are an ethical, legal and medical minefield: that the surrogacy contract dictates how much caffeine she can ingest, requires her to avoid second-hand smoke, forbids her from using hair dye and nail polish, and from being around cat litter.

"The contract reduces Melissa Cook to the equivalent of an object or breeding animal to be manipulated by C.M. and completely subrogated to his demands," the complaint states.

Cook claims California's Surrogacy Enabling Statute violates her due process rights under the 14th Amendment. She seeks an injunction to stop Los Angeles County officials from issuing any birth certificates that do not list her as the babies' mother.

She is represented by Michael Caspino with Buchalter Nemer in Los Angeles and Harold Cassidy in Shrewsbury, N.J.

Cassidy said he's confident Cook will prevail in the federal case.

"The Surrogacy Contract in this case and the California Surrogacy Enabling Statute will not withstand constitutional scrutiny," the attorney said Wednesday in a statement .

"The notion that a man can demand that a mother terminate the life of one of the children she carries by an abortion, and then claim that she is liable for money damages when she refuses, is cruel to the mother. The idea that when a mother offers to raise the child that the man wanted her to kill, but the man insists that the child be raised by a stranger instead of the mother who loved him and saved his life, is cruel to the child."

The defendants are Los Angeles County Public Health Director Cynthia Harding, Los Angeles County Clerk Dean Logan and Los Angeles County Department of Public Health Director Dr. Jeffery Gunzenhauser.

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