A Supreme Court Article Not About Judge Kavanaugh

The high court isn’t interested in getting tangled up in surrogacy issues, ensuring that hopeful parents can safely complete their family with legal protection.

As the country burns to the ground around us, and you fight your college friends on Facebook and Twitter, it’s hard to remember that not everything divides the Court along political lines. In fact, there are a lot of cases that the Supreme Court decides … by not deciding them.

Back in May, I recommended to the Supreme Court that it not waste its time on the anti-surrogacy case pending before it at the certiorari stage. This week, SCOTUS took my advice, and — presumably after reading abovethelaw.com — the Court denied cert in Cook v. Harding.

As a refresher, the Cook case centered on a prominent surrogacy dispute that’s made its way into the headlines over the last few years. The facts start with a gestational surrogacy arrangement entered into by a woman in California, Melissa Cook, who agreed to be a surrogate for a single man in Georgia. The fertility doctor transferred three embryos to the surrogate, who was not herself the egg donor, and so she was not genetically related to the babies. Instead, the single dad used an anonymous donor’s eggs, and all three implanted embryos took. Cook was carrying triplets.

The father-to-be requested that Cook abort at least one of the fetuses to “reduce” the pregnancy to a safer twin or singleton pregnancy. Cook refused, and from there the relationship between the intended father and surrogate unsurprisingly took a turn for the worse.

The birth, fortunately, ultimately resulted in three healthy babies. But Cook brought suit to claim parental rights to all three. Cook’s attorney, Harold Cassidy, is a familiar face in this arena. Cassidy appears throughout the country, leading the anti-assisted reproductive technology charge on the legal front. Not only did Cook, via Cassidy, argue that Cook should be the legal parent of the triplets, Cook further challenged the constitutionality of California’s surrogacy statute. After Cook and Cassidy failed in both California state and federal courts, Cassidy sought writs of certiorari with the Supreme Court.

This week’s decisions are not just not bad news about SCOTUS… or any particular Justice or potential Justice. (No, I’m not touching that with a 10-foot pole). It’s like, actual good news. I spoke with Andrew Vorzimer, a prominent California assisted reproductive technology attorney, about the consequences of the cert denials. He said that the decisions are consequential for several reasons. “First and foremost, it ends a series of challenges, largely funded by conservative interest groups, to end all forms of assisted reproduction. While today’s ruling only addressed gestational surrogacy, the groups behind Ms. Cook’s efforts have been seeking to end IVF, sperm donation, egg donation, embryo donation and gestational surrogacy. Secondly, it finally brings to a conclusion an attack on the constitutionality of California’s surrogacy laws.” Note that while Vorzimer mentions conservative groups that oppose surrogacy, this wasn’t a political decision. There’s no dissent, and many of the arguments that Cassidy was making — about substantive due process — are hardly conservative staples of jurisprudence.

In any event, the denials mean that the rulings of the California Court of Appeals and the Ninth Circuit Court of Appeals stand. Those rulings had found that surrogacy agreements are not impermissibly exploitative and dehumanizing of women (as continually asserted by Cassidy), and rejected the claim that surrogacy contracts are not against public policy.

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Vorzimer further explained that this week’s cert denials “also uphold the rights of state courts to terminate a gestational carrier’s rights to any child she delivers. It removes any uncertainty, and ensures that the intended parents will receive custody of their child. The decision today preserves the rights of those struggling with infertility to have access to assisted reproduction, including surrogacy, to start their families.” As you can imagine, for those who turn to surrogacy, one of their greatest fears is that the woman they entrust to carry their baby will “change her mind,” and try to keep their baby. The SCOTUS decisions further seem to confirm that the Court isn’t interested in getting tangled up in this issue, ensuring that hopeful parents can safely complete their family with legal protection.

Gold star for you, SCOTUS! It is a great day for those triplet toddlers and their dad. As well as for ART attorneys throughout the country. And for hopeful parents throughout the world.


Ellen TrachmanEllen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at babies@abovethelaw.com.

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