Whose Child Is This? 'Surrogacy,' Authority, and Responsibility
| Author | Christine Overall |
| Pages | 29-49 |
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1
Whose Child Is This?
“,” ,
Christine Overall*
A. INTRODUCTION: THE CASE OF MELISSA COOK
Melissa Cook is a California resident who took part in a formal “surrogacy”
arrangement through Surrogacy International, Inc, a California-based
“surrogacy” broker. On August , when she was forty-seven years old,
three male embryos were implanted in her uterus. The eggs came from an
anonymous “donor”; the sperm was from a fty-year-old postal worker,
CM, who was single and deaf and living with his elderly parents and had
used Surrogacy International to obtain a “surrogate.”1 CM requested that
multiple embryos be implanted.2
Cook never met CM and did not talk with him via telephone. During
the pregnancy, they communicated rst via email and then, by the end of
November, through their respective lawyers. What followed is described
in detail in Cook:
* I am grateful to Alana Cattapan and two anonymous reviewers for their helpful guid-
ance and comments on an earlier draft of this chapter. I also thank Alana Cattapan for
her work in providing additional references for this chapter.
1 I put “donor” in quotation marks to signal the fact that the woman who provided the
ova was very likely paid.
2 Cook v Harding, 190 F Supp 3d 921 (CD Cal 2016) [Cook] (subsequent descriptions of
the Cook case are from this decision, except where otherwise indicated).
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On September , , C.M. emailed Cook and mentioned the possi-
bility of her reducing the pregnancy, and asked her how much longer
she would have to obtain a legal abortion. The next day, C .M. emailed
the fertility clinic monitoring Cook’s pregnancy, requesting that Cook’s
medical visits be “less often, because [he] gets a bill that costs [him] a
lot of money.” He also expressed his concern that he may not be able
to aord triplets, or perhaps even twins. The clinic insisted that Cook’s
high-risk pregnancy required weekly visits. On September , , C.M.
emailed [Robert] Walmsley [his counsel] at Surrogacy International to
reiterate his nancial concerns about the cost of the medical visits. While
he said that he did not want to reduce two of the pregnancies, his nan-
cial situation left him considering terminating all three pregnancies.3
Melissa Cook oered to care for the three babies for some months after
their birth, to enable CM to improve his nances. Citing their surrogacy con-
tract’s “selective reduction” clause, CM responded by asking Cook to abort,
via selective reduction, one of the three developing fetuses. Cook replied
that the three fetuses were all healthy and refused to have an abortion.
On October , CM informed Cook that he was thinking of seeking
adoptive parents for one or more of the three babies. Cook responded that
she would raise one of the babies herself. CM sent several more requests
for selective termination, saying that her refusal to reduce was in breach
of her contract and that she was liable for money damages under the terms
of the agreement. Cook reiterated her refusal to abort and her willingness
to raise one of the children. CM reiterated his intention to put one baby up
for adoption.
On February , the California Children’s Court granted CM’s
petition to terminate Cook’s legal relationship with the babies and named
CM as the sole parent. Three male babies were born via caesarean very pre-
maturely on February . The babies remained in the Neonatal Inten-
sive Care Unit at Panorama City Medical Center for seven weeks, and Cook
was not allowed to see them or to be told anything about their condition.
Having serious doubts about CM’s ability to care for three premature
infants, Cook sought custody of one baby and a hearing to determine the
best interests of the other two. These requests were refused, and CM was
3 Ibid at 928.
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