303-534-4888

104 Broadway, Suite 200
Denver, CO 80203

303-534-4888

104 Broadway, Suite 200
Denver, CO 80203

Surrogate Carrying Triplets Sues to Prevent Abortion

Surrogate Carrying Triplets Sues to Prevent Abortion

On January 5, 2015, Sharon Liko appeared on the program, Risks and Rewards, which is aired on the Fox Business News channel to discuss the California surrogacy case of Melissa Cook.

Ms. Cook entered into a surrogacy contract with the intended father to carry implanted embryos to term. When Ms. Cook became pregnant with triplets, the intended father wanted her to abort one of the fetuses because he only wanted two children.

Ms. Cook brought suit in the California Superior Court claiming that California’s surrogacy law is unconstitutional.

Although Colorado does not have a specific surrogacy statute, the same issues could arise in Colorado, and are, therefore, worthy of discussion.

The surrogacy contract signed by Ms. Cook contained a provision which allowed the intended father to request a “selective reduction”.  However, since Ms. Cook is refusing to have an abortion, a myriad of Constitutional, statutory and contractual legal issues have arisen.


1. Can the intended father force Ms. Cook to have an abortion? 

 No, he cannot.  Ms. Cook’s Constitutional rights trump her contractual obligation.  The Due Process Clause of the 14th Amendment to the U.S. Constitution protects a person’s right to privacy, which includes a woman right to have control over her own body. 

 In 1973, the U.S. Supreme Court issued its decision in the seminal case of Roe v. Wade, which determined that a woman may choose whether or not she wishes to have a baby.  Conversely, a woman may choose not to have an abortion.

 If she chooses to make the argument, Ms. Cook could also argue that abortion is contrary to her religious beliefs.  Thus, Ms. Cook’s right to carry all three fetuses to term is protected by the First Amendment to the U.S. Constitution which guarantees the right to religious freedom.

 Therefore, regardless of the contract terms, Ms. Cook has the Constitutional right to have all three babies.  However, she does not have the right to keep all three babies.

  2. What rights does the intended father have pursuant to the contract?

 Since the father cannot force Ms. Cook to have an abortion, his remedy is financial pursuant to the terms of the contract. 

If Ms. Cook refuses to abort one of the fetuses and gives birth to triplets, she will have technically breached the contract by not “selectively reducing” the number of embryos per the intended father’s request.

 In that event, Ms. Cook would not be entitled to collect the contracted fee of $6000 for each additional child.  Price for the first baby is $33,000.

3.  Who is legally responsible for the third baby?

 The terms of the contract clearly state that the intended father is the legal parent and is financially responsible for the babies.  The surrogate mother has no rights to nor does she have any financial obligation for the babies.

 Regardless of the fact that the father only wants two children, since he is the legal parent, he is responsible for all of the children born as a result of his embryos.  Under the Uniform Parentage Act, unintended pregnancies to not absolve the father from the obligation of financial support.

 4.  What rights to the third baby does the surrogate mother have?

 Pursuant to the terms of the contract, Ms. Cook has no rights to the babies.    Simply and indelicately put, Ms. Cook is in the business of loaning her body to strangers for the purpose of having their children.  For this service, she is entitled to a fee.  Since she is not biologically related, she is considered a “transitional” surrogate.   Once she gives birth, Ms. Cook’s job is done, and she needs to move on.

 5 Where do the parties go from here? –  Complicated!

 This is a complicated question, and the answer is that “it depends.”  Constitutionally, Ms. Cook has the right to give birth to all three babies.  However, she does not have the right to keep any of the babies.  Biologically, contractually, and legally, none of the babies are hers.

 The intended father is the father biologically, contractually and legally.  The babies are his and he is financially responsible for them pursuant to statute and the contract.

 After their birth, the father will have to decide whether or not to keep all three babies, or place one of them up for adoption.  If he chooses to keep all three, the story ends here.

 If he chooses to place one of them for adoption, the surrogate mother may petition the court


 

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