Surrogate Mother’s Attempt to Regain her Children Fails in Ninth Circuit

SAN FRANCISCO (CN) – A surrogate mother of triplets on Friday lost her appeal to adopt the babies she gave birth to, whom she says are currently endangered by their father.

A three-judge panel of the Ninth Circuit unanimously upheld a lower court decision to deny Melissa Cook’s attempt to intervene in the triplets’ lives, saying the court lacked jurisdiction over the matter. In addition to the federal court’s denial of Cook’s plea, the case had also progressed through the California state court system and received a ruling from a state appellate panel.

“Cook’s position is that her constitutional claims ‘have never been directly addressed and decided,’” the Ninth Circuit panel wrote in a 16-page opinion. “This is baseless in light of the Court of Appeal’s thorough and well-reasoned opinion, which devotes over eight pages to addressing each of her constitutional challenges in turn.”

Cook, a 49-year-old Californian, attempted to back out of a surrogacy contract with a 51-year-old Georgia man, identified in court documents as C.M., after he asked her to abort one or more of the fetuses because he couldn’t afford to pay for it.

Cook gave birth to the children, who were conceived with a donor egg and C.M.’s sperm, in February 2016. They have since been delivered to C.M.

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 found 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.

The Ninth Circuit’s ruling is unsurprising given the nature of a November hearing before the panel, where the judges repeatedly asked Cook’s lawyer Harold Cassidy why he wasn’t pursuing the case in family court in Georgia, where the children currently live.

“Isn’t the place to take this case a family court in Georgia?” Wardlaw asked. “Shouldn’t you litigate this in Georgia?”

Cook delivered the triplets in a Los Angeles hospital, and nurses associated with the hospital took them to Georgia. 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’s Services and requested the children be removed from the home.

Cook’s petition to the U.S. Supreme Court said C.M. is “a single deaf-mute who lives in his elderly parents’ basement.”

In additional Supreme Court documents, C.M.’s sister Melinda Burnett detailed the conditions he lives in, 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.

The U.S. Supreme Court declined to take up the case.

C.M.’s attorney Robert 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 Cook.

Ultimately the matter was decided largely along jurisdictional lines in the Ninth Circuit, especially since the matter was tried parallel in state court, which declined Cook’s claims.

“Cook does not and could not credibly argue that the issues in the two proceedings are different; the factual allegations she made in both state and federal court are almost identical in the literal sense of the word,” the panel wrote.

U.S. Circuit Judges Stephen Reinhardt and Kim McLane Wardlaw, along with U.S. District Judge Wiley Y. Daniel sitting by designation from the District of Colorado, reviewed the case.

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