I Want To Put A Baby In You: Triplets Trouble
Please welcome new columnist Ellen Trachman, who will be writing about Assisted Reproductive Technology aka “ART” law.
Ed. note: Please welcome Ellen Trachman, our newest columnist here at Above the Law.
Hello, I’m Ellen Trachman, Founder and Managing Attorney of Trachman Law Center, LLC. I’m here to give you the latest on the scandals and controversies in one of the most sensitive and divisive areas of law—Assisted Reproductive Technology, or “ART” law. I used to be a hedge fund attorney at Sidley Austin. But now, in addition to helping people achieve their dreams of a baby, I get to write for Above the Law! Fantasy dream career unlocked! So please keep an eye out for this column on Wednesdays.
The latest case out of California involves a surrogate asked to abort one of the triplets she was carrying to reduce the pregnancy to twins. As you’d expect, the ensuing legal battle is both heated and murky.
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Melissa Cook, a 47-year-old mother of four, decided to go through a second paid surrogacy after a positive experience earning money and helping another family her first go around. Matched through an agency called Surrogacy International, Ms. Cook agreed to carry for “C.M.,” a deaf postal worker hoping to become a father.
Cook admits to only briefly glancing at the 75-page surrogacy contract she signed, likely not taking notice of the “reduction” provisions that allowed the father to abort or “reduce” the pregnancy in his discretion.
Of course, to arrive at the present controversy, Cook ended up carrying triplets, thanks to the transfer of three embryos to her uterus all successfully developing. C.M., having limited financial resources, panicked at the prospect of raising triplets on his own (because honestly, who wouldn’t). C.M. requested that Ms. Cook reduce the pregnancy to twins. Cook refused.
Now we are beyond that stage. The triplets were born last week and immediately whisked away from Cook to their biological and—for the time being—legal father. Abortion, at least in this case, is no longer the issue. The issue at hand is that Cook is demanding that she be given parental rights and custody of the fetus (“Baby C”) that C.M. requested to be terminated. To go further, Cook is asking a court determine custody in the “best interests” of the children for the other two.
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To add to a stressful situation, it appears that no one checked Cook’s medical insurance for a surrogacy exclusion – which (surprise!) it had. So the insurance company is now seeking reimbursement from Cook for medical expenses.
So many frustrating points of this case! First, I get it. I totally understand that Ms.Cook did not want to abort a child. Almost every surrogacy contract I have reviewed warns in the termination/reduction sections that any wish of an intended parent for the surrogate to terminate (or not to terminate) a pregnancy may be unenforceable given a woman’s basic right to autonomy over her own body.
The more pressing issue is Cook’s position that she should have a legal right to parent one or more of the children based on her assessment of the father’s fitness as a parent.
I predict that Cook will lose this case. California statutes and case law have continued to support the rights of intended parents like C.M. in surrogacy arrangements. In fact, if C.M. were to seek monetary damages for Cook’s exercise of her right not to have an abortion, a court might award him damages related to breach of contract and raising the third child. More broadly, what went wrong in this case (so many things…):
1. Transferring more than one embryo. The gold standard now is to transfer only one embryo. This massively cuts down the likelihood of multiples and the incredible issues and risk surrounding these pregnancies.
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2. Not reviewing the surrogate’s insurance policy. Everyone is relying on the surrogate’s insurance to cover a majority of the medical costs (which can quickly skyrocket, especially with triplets). A failure to take a look at the surrogate’s insurance policy and confirm there was no surrogacy exclusion is sloppy work.
3. No real review of the contract. The surrogate said she took only a “cursory” look at the contract. Not only should she be reviewing the contract carefully, but her attorney should be going over with her the major provisions (e.g., what she is agreeing to if the intended father wants to reduce or abort the pregnancy). Always get a good attorney!
4. The contract was 75 pages! No wonder she took only a cursory look. That is like the iTunes Terms of Service. Most contracts I review are more in the 30-40 page range, and even that is an exhausting feat for a surrogate to work her way through, and then it often takes multiple hours-long sessions for us to review the highlights.
5. No apparent escrow account. I have seen no mention of an escrow account, which makes me question whether there was one. The standard practice is for the agency to calculate a solid estimate of the expected costs and the intended parent to place the funds in an escrow account up front. This requirement would have at least mitigated what appear to be grave financial concerns on the part of both parties.
Surrogacy is an incredible development that allows families to be formed where there was no hope before. But screwing it up makes it harder for everyone else. Don’t let yourself or your friends be part of the problem!
Ellen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, adoption, and estate planning. You can reach her at babies@abovethelaw.com.
