By Dov Fox
Everything went fine the last time for Melissa Cook, when the 48-year old mother of four carried a child for a family back in 2013 to supplement her office job salary. This time was different. First were the triplets. She had been impregnated with three embryos, created using eggs from a 20-something donor and sperm from the intended father who paid for everything. Then, it was that the man, Chester Moore, turned out to be a deaf 50-year-old postal worker who lived with his parents. Finally, was that Moore asked Cook to abort one of the fetuses. He said that he had run out of money to support a third child and worried the high-risk multiple pregnancy would endanger the health of any resulting children.
Cook, who is pro-life, refused. A battle over parental rights of the triplets, all boys, began even before they were born (prematurely, at 28 weeks). Moore argued that his surrogacy contract with Cook, explicitly enforceable under California law, made clear that he was the sole legal parent. Cook sued for custody, notwithstanding her prior agreement that any children resulting from the pregnancy would be his to raise. She argued that the statute, by authorizing private contracts for gestation of a human being, reduces children to “commodities” for sale, and a surrogate like her to a “breeding animal or incubator.”
Yesterday, Judge Otis D. Wright II dismissed the case in its entirety. The 24-page order has not yet been picked up by the media. But it’s well worth the read, if not for its careful discussion of Younger abstention and related jurisdictional doctrines (which I won’t wade into here), then for its concise history of assisted reproduction. It includes extended quotations about pregnancy and parenthood by such authorities as Abram from Genesis and Phoebe from Friends. The Order makes clear that surrogacy agreements are “presumptively valid” in California, with “[n]o minimum levels of income, intelligence, age, or ability are required for either the surrogate or the intended parent(s).”
Judge Wright notes in a footnote: “Should Cook ultimately prevail, the Court is at a loss to imagine an intended parent in this state who would contract with a gestational surrogate, knowing that the woman could, at her whim, ‘decide’ that the intended parent or parents are not up to snuff and challenge their parenting abilities in court. Surely Cook’s normative world would be one far different today’s; after all, ‘[w]hat a far different experience life would be if the State undertook to issue children to people in the same fashion that it now issues driver’s licenses. What questions, one wonders, would appear on the written test?’ J.R. v. Utah, 261 F. Supp. 2d 1268, 1298 n.29 (D. Utah 2002)”.
So Moore will keep all three boys, including the one he had asked Cook to terminate as a fetus. He could not have required that she have an abortion against her contemporaneous objection, even if she had agreed to selectively reduce in the event of a multiple pregnancy. Now, most fundamental rights can be waived, as Glenn Cohen showed on pages 1185-94 of his article on “The Constitution and the Rights Not to Procreate.” But enforcing waiver of the abortion right, Larry Tribe argued back in 1985, risks exploiting a special vulnerability of women in a way that reinforces their unequal social and political status. So perhaps the abortion right cannot be waived, even as childrearing rights can be by entering into a surrogacy contract or giving a child up for adoption.
John Robertson has suggested an intriguing way of thinking about this problem in terms of remedies rather than enforcement. At pages 1868-75 of his article on “Precommitment Issues in Bioethics,” Robertson argues that agreements for embryo disposition and posthumous reproduction should be presumed valid and enforceable; the remedy wouldn’t be specific performance, however, but a corresponding level of damage awards. Along these lines account, women might be held to their agreements about abortion too, just not in a way that would ultimately require them to terminate a pregnancy (or not); breaking an abortion contract would instead impose damages. This approach might even support damages for the cost of medical treatment that a contract-breaching refusal to reduce a high-order pregnancy can be shown to have caused a resulting child to need.
It bears mention that Cook’s lawyer, Harold Cassidy, also represented the surrogate, Mary Beth Whitehead, in the first U.S. court ruling on the validity of surrogacy. There, Whitehead was genetically related to “Baby M,” as she had named the child and as the case would become known. The New Jersey Supreme Court declared such arrangements void as against the state’s public policy. But it also affirmed a “best interest of the child” analysis that, upon remand to family court, led the commissioning parents to be awarded custody with visitation to Whitehead. Cassidy was also architect of the campaign to overturn Roe v. Wade by appeal to the specious “post-abortion syndrome” argument that abortion harms women by causing depression and even suicide.