PASADENA, Calif. (CN) – The surrogate mother of triplets took her fight over the constitutionality of a California law that terminated her relationship with the boys after their birth to the Ninth Circuit on Thursday.
Melissa Cook, a 49-year-old Californian, attempted to back out of surrogacy contract with an unidentified 51-year-old Georgia man, after he asked her to abort one or more of the fetuses because he couldn’t afford to pay for it.
Cook has since had the children and they have been delivered to the man, identified in court papers as C.M. But Cook says the children live in deplorable conditions and, as their birth mother, she has an interest in their future.
But a California family court judge disagreed last year, finding the surrogacy contract she signed and state law override the rights historically conveyed to birth mothers.
The state’s Second Appellate District upheld the decision, agreeing Cook had essentially signed away her parental rights.
Cook then sued in federal court, saying both state courts failed to address the matter of whether the state law at issue violates the 14th Amendment of the U.S. Constitution, which governs parental rights and the right to live together as a family.
“These children and their mother as a matter of fact were not given the right to litigate this issue,” Cook’s attorney Harold Cassidy told the Ninth Circuit panel.
Robert Walmsley, attorney for C.M., said the courts did adjudicate Cook’s constitutional claims, noting the state appellate court dedicated 14 pages analyzing why the constitutional claims did not hold.
“The trial court considered and rejected all their claims,” Walmsley told the three-judge panel.
Chara Crane, deputy attorney general for California, said the state can’t be sued in federal court on 14th Amendment claims. And the defense said Cook lacks standing to bring her claims.
“I believe the court of appeals did rule the plaintiff has standing,” Circuit Judge Kim McLane Wardlaw said, but she also asked Cook’s attorney Cassidy about jurisdiction.
“Isn’t the place to take this case a family court in Georgia?” Warlaw asked. “Shouldn’t you litigate this in Georgia?”
The judges did not indicate how or when they would rule, and took the matter under submission.
Cook’s case first garnered headlines in 2015, when C.M. first demanded she abort one or more of the fetuses. He said at the time he was only interested in twins and could not afford a third child.
She even took her fight to the U.S. Supreme Court, which declined to take up the case last month.
Cook delivered the triplets in a Los Angeles hospital in February 2016, and they were taken to Georgia by nurses associated with the hospital. One of the head nurses was so appalled at the condition of C.M.’s residence upon arrival that she called the Georgia Division of Family and Children Services and requested the children be taken from them.
In Supreme Court documents, C.M.’s sister Melinda Burnett detailed the conditions, saying the children aren’t properly cared for, are often kept in dirty diapers and are frequently subjected to secondhand smoke from the chain-smoking C.M.
Cook’s petition to the Supreme Court said C.M. is “a single deaf-mute who lives in his elderly parents’ basement.”
Walmsley has repeatedly defended his client’s parenting abilities and said the children are developing well. He also co-owns the surrogacy firm that matched C.M. and the children.
On Thursday, the judges and lawyers concentrated solely on the legal matters and did not discuss in any detail current conditions of the children’s living situation.