A battle over triplets raises difficult questions about the ethics of the surrogacy industry and the meaning of parenthood.
Photo illustration by Lisa Larson-Walker. Photos by Thinkstock.
Last year, a 47-year-old
California woman named Melissa Cook decided to become a commercial
surrogate. Cook is a mother of four, including a set of triplets, and
had served as a surrogate once before, delivering a baby for a couple in
2013. According to her lawyer, Harold Cassidy, she’d found it to be a
rewarding way to supplement the salary she earned at her office job.
“Like other women in this situation, she was motivated by two things:
One, it was a good thing to do for people, and two, she needed some
money,” Cassidy says.
Michelle Goldberg
For her second surrogacy, Cook signed up with a broker
called Surrogacy International. Robert Walmsley, a fertility attorney
and part owner of the firm, says he was initially reluctant to work with
her because of her age, but relented after she presented a clean bill
of health from her doctor. Eventually, Surrogacy International matched
her with a would-be father, known in court filings as C.M.
According to a lawsuit filed on Cook’s behalf in United
States District Court in Los Angeles earlier this month, C.M. is a
50-year-old single man, a postal worker who lives with his elderly
parents in Georgia. Cook never met him in person, and because C.M. is
deaf, Cassidy says the two never spoke on the phone or communicated in
any way except via email. In May, Cook signed a contract promising her
$33,000 to carry a pregnancy, plus a $6,000 bonus in case of multiples.
In August, Jeffrey Steinberg, a high-profile fertility doctor, used in
vitro fertilization to implant Cook with three male embryos that were
created using C.M.’s sperm and a donor egg. (According to the lawsuit,
the gender selection was done at C.M.’s request.) When an egg donor is
under 35, as C.M.’s was, the American Society for Reproductive Medicine
strongly recommends implanting only one embryo to avoid a multiple
pregnancy, but some clinics will implant more to increase the chances
that at least one will prove viable. In this case, they all survived.
For the second time in her life, Cook was pregnant with triplets. And
soon, the virtual relationship she had with their father would fall
apart.
Cook and C.M. are still strangers to each other, but they are locked
in a legal battle over both the future of the children she’s going to
bear and the institution of surrogacy itself. Because she’s come under
pressure to abort one of the fetuses, Cook’s case has garnered some conservative media
attention. This story, however, is about much more than the abortion
wars. It illustrates some of the thorniest issues plaguing the fertility
industry: the creation of high-risk multiple pregnancies, the lack of
screening of intended parents, the financial vulnerability of
surrogates, and the almost complete lack of regulation around surrogacy
in many states.
The United States is one of the few developed countries where commercial, or paid, surrogacy is allowed—it is illegal in Canada and most of Europe. In the U.S., it’s governed by a patchwork of contradictory state laws. Eight states expressly authorize it. Four states—New
York, New Jersey, Washington, and Michigan—as well as the District of
Columbia prohibit it. In the remaining states, there’s either no law at
all on commercial surrogacy or it is allowed with restrictions.
California is considered a particularly friendly place for surrogacy arrangements. In 1993, a California Supreme Court ruling, Johnson v. Calvert,
denied the attempts of a gestational surrogate named Anna Johnson to
assert maternal rights. (A gestational surrogate is one like Cook who
has no genetic relationship to the fetus or fetuses she caries.) What
mattered in determining maternity, the court ruled, were the intentions
of the various parties going into the pregnancy: “Because two women each
have presented acceptable proof of maternity, we do not believe this
case can be decided without enquiring into the parties’ intentions as
manifested in the surrogacy agreement,” the court said. It was a victory
for Walmsley, who represented the couple who’d hired Johnson as their
surrogate.
A 2012 California law, which went into effect this year, codifies
procedures for surrogacy agreements; among other things, it specifies
that both surrogates and intended parents must have their own lawyers.
If a contract is executed in accordance with the law, then a gestational
surrogate relinquishes any claim to legal parenthood.
“Surrogacy’s been distinguished as something completely different
from adoption,” says Lisa Ikemoto, a UC Davis School of Law professor
who specializes in reproductive rights and bioethics. Unlike in
adoption, there’s no legally required screening of intended parents. A
pregnant woman who offers to give her baby up for adoption can
reconsider her decision; in California, a pregnant surrogate cannot. To a
large extent, the law “puts a lot of trust in a surrogacy center to
make sure that these things are carried out appropriately,” Ikemoto
says. “It’s very industry-friendly, and by ‘industry,’ I’m referring to
the fertility industry.”
In California, that industry is known for pushing boundaries. It is
the state that gave us the so-called Octomom, Nadya Suleman, who gave
birth to octuplets in 2009 after her fertility doctor implanted her with
12 embryos. Also in 2009, the Modesto-based surrogacy agency
SurroGenesis was revealed to have defrauded clients of millions of
dollars, leaving some intended parents unable to pay the surrogates who
were carrying their children. The New York Times reported
that one surrogate, pregnant with twins and confined to bed rest,
received an eviction notice after the couple who had hired her were
unable to reimburse her for lost wages.
Three years later, in 2012, a prominent California surrogacy broker
named Theresa Erickson was sentenced to prison for leading an international baby-selling ring.
Erickson, a former board member of the American Fertility Association,
recruited surrogates and sent them to Ukraine, where they were implanted
with embryos created from donated eggs and sperm. She put the resulting
babies up for adoption, telling prospective parents that they were the
result of surrogacies in which the original intended parents had backed
out. Erickson collected between $100,000 and $150,000 for each baby.
After she was sentenced, she told NBC San Diego that her case represented the “tip of the iceberg” of a corrupt industry.
Even when it’s not corrupt, the industry often tests the limits of
bioethics. Steinberg, the doctor who performed Cook’s embryo transfer,
was last in the news for marketing embryo screening for hair, eye, and
skin color. “This is cosmetic medicine,” he told the Wall Street Journal.
“Others are frightened by the criticism but we have no problems with
it.” He was a pioneer in the use of IVF for sex selection, and his
clinic draws clients from countries around the world where the practice is banned.
“We don’t have good oversight of the whole fertility industry,” says
Marcy Darnovsky, executive director of the Center for Genetics and
Society in Berkeley, California, and a longtime women’s health advocate.
“It’s very underregulated, and we need to be taking that really
seriously. California is a surrogacy-friendly state and thinks that it’s
doing surrogacy the right way. But there have been enough problems in
California that clearly something is not right.”
* * *
From the beginning, the arrangement between Cook and C.M. appears to
have been plagued by miscommunication. Cassidy acknowledges that Cook
only gave a cursory read to the 75-page surrogacy contract before
signing it. Walmsley of Surrogacy International drafted the contract; he
is also serving as C.M.’s attorney. (At the time, Cook was being
represented by a lawyer named Lesa Slaughter, paid for by C.M.) Cook
contends that she didn’t know about the contract’s provision, common in
surrogacy agreements, allowing C.M. to request a selective reduction, in
which one or more of the fetuses in a multiple pregnancy is aborted.
(In reporting this story, I had multiple conversations with Cassidy and
Walmsley, but neither allowed me to interview their clients directly.)
According to Cook’s lawsuit, before the embryo transfer, C.M. assured
her via email that he could accept responsibility for all the children
that might result. But while C.M. had been prepared for twins, he didn’t
want triplets. Indeed, her suit says, soon after her pregnancy was
confirmed, it became clear that C.M. had exhausted his savings, and
wasn’t sure he could care for more than one baby.
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