Surrogate carrying triplets brings lawsuit to prevent being sued for failing to abort

A US woman acting as a surrogate has filed a lawsuit to prevent a claim in damages being brought by the commissioning father after he requested she undergo a selective reduction.

Melissa Cook is now over 23 weeks pregnant with triplets after undergoing IVF. She was implanted with three embryos created from the commissioning father's sperm and donor eggs.

The commissioning father, known in court papers as CM, wanted Cook to reduce the pregnancy from triplets to twins, reportedly threatening to withhold financial payments and sue for child support if she did not comply (see BioNews 833). CM, who is single, reportedly argued that he was not in a financial position to care for three children at the same time although his lawyer, Robert Walmsley, later clarified that CM was concerned about the medical risks associated with multiple births.   

The parties had entered into a contract under which it was agreed that Cook would be paid $33,000 for the pregnancy and $6,000 for each additional child. The contract allegedly contains a clause that gives CM the option to ask Cook to abort.  

Cook's lawsuit in response states that California surrogacy law, under which commercial surrogacy arrangements are permitted, violates both equal-protection and due-process rights, which are guaranteed by the US Constitution. The lawsuit, which seeks a declaration that she cannot be sued for damages, states that each of the triplets 'has a fundamental right to get to know and love their mother and to continue their relationships with her,' the Daily Mail reports.  

Cook's lawsuit also requests that she be declared the legal mother of the third child and be allowed to apply for custody over the other two once they are born, explains the Washington Post. CM refused Cook's initial request that she be allowed to adopt one of the triplets instead of having a termination, allegedly saying that he will deliver the third child up for adoption to a third party instead.

Harold Cassidy, Cook's lawyer said that both the contract in this case and the governing legislation 'will not withstand constitutional scrutiny'.

'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,' he said.

Professor Judith Daar, who is chairman of the American Society for Reproductive Medicine Ethics Committee, said that 'a court would not order a surrogate to have a procedure she did not consent to or that she was opposed to'. However, she also said that it would be unlikely for a court to give a surrogate parental rights.

Professor Daar added that it is unclear whether she may be sued for damages, stating 'that has not really been discussed by the court. It might take the remedies question to a new level'.