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Federal Judge Won’t Give|Surrogate Mom a Triplet

LOS ANGELES (CN) — A surrogate mother who wants custody of at least one of the triplets she delivered in February cannot use the federal court to assert that California's surrogacy law is unconstitutional, a federal judge ruled.

Melissa Kay Cook, with the help of a surrogacy broker, entered into a contract with C.M. to serve as a gestational surrogate, with an anonymous ova donor and C.M. providing the necessary genetic material.

After learning that Cook had become pregnant with triplets, C.M. allegedly asked her to abort one of the babies because he was not financially able to support three children. Although Cook offered to adopt the third child, C.M. refused, according to Cook's complaint.

Before the children were born, the California Children's Court granted C.M.'s petition to terminate Cook's legal relationship with the babies and to name C.M. as the sole parent. Cook appealed and is awaiting review by the California Court of Appeal.

Cook says that after the babies were born prematurely on Feb. 22, they were immediately taken away from her and she was not allowed to see or hold them.

Her federal complaint, filed in early February, argues that California's Surrogacy Enabling Statute violates the babies' rights by depriving them of a relationship with their mother, unconstitutionally deems children born to surrogates a "class of motherless children," and violates her due process rights by terminating her parental rights before birth.

Cook seeks an injunction compelling C.M. to provide equal parenting time, restraining him from taking the children out of state, and giving Cook permanent custody of one of the babies.

U.S. District Judge Otis Wright said in his Monday ruling that the heart of Cook's suit asks the court "to assess the constitutionality of how a state defines parenthood and to hold that no state can afford respect and force of law to a private contract between consenting adults for the gestation of a human being, no matter the biological relationship (or lack thereof) of the surrogate mother and the fetus she carries to term."

Wright determined that the federal court was barred from hearing the case due to ongoing state proceedings. Cook's appeal of the Children's Court's parentage order is still before the California Court of Appeal.

"(N)othing presented to this court implies that the California Court of Appeal is barred from entertaining Cook's constitutional claims. Moreover, this court will not contradict decades of precedent and find that a state court is incompetent to adjudicate federal constitutional claims," Wright wrote.

The case is of great interest to California, the judge said.

"The underlying state interest here is, perhaps, one of a state's most precious. Cook is asking this court to redefine parenthood under state law, and surely no area of law is of greater interest to the state than that devoted to the domestic realm. The power of a state to determine the custody of its youngest members is unique to the state, and accordingly federal courts should abstain from interference," Wright wrote.

Attorneys did not immediately respond to requests for comment late Tuesday.

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