California Surrogacy Case Could Have Major Impact on Child Custody Rights in U.S.

In a fascinating case that figures to have serious implications for the child custody rights of surrogate mothers throughout the country, a surrogate mom in California is claiming that a state law basically requiring her to abort a child is unconstitutional.

The California case recalls a famous surrogacy case, the “Baby M” case, in New Jersey in 1988. The NJ case was actually the first U.S. court ruling on the legality of surrogacy, culminating in a decision that invalidated a New Jersey surrogacy contract. Today, the Baby M ruling, which held that surrogacy contracts are not legal and that the woman bearing a child maintains her presumptive legal right to custody, remains the law in New Jersey.
However, a case involving Melissa Cook, a 47-year-old surrogate mother who is currently carrying three children for a father from Georgia, stands to impact the way all states deal with surrogacy contracts.

In this case, the issue is that the father specifically contracted with Cook for just two children. As a result, the father insisted that Cook abort one of the triplets or face significant monetary penalties, in accordance with the contract.

Now Cook is fighting back by filing a lawsuit that challenges California’s commercial surrogacy law. Cook and her attorneys recently filed a complaint in California Superior Court and argued that the state’s surrogate law, the California Surrogacy Enabling Statute, is a violation of Cook’s due process rights and equal protection rights, as set forth in the U.S. Constitution.

Cook, echoing an argument made by many family law experts and divorce lawyers, suggests that “children derive a special benefit from their relationship with their mother.” Beyond that, Cook’s attorney has argued that it would be “cruel” to effectively force the child to be put up for adoption and raised by a stranger when Cook, the birth mother, has already declared that she wants to raise the child.

If Cook is successful in her lawsuit, the California law, and similar surrogacy laws in other states, would potentially be invalidated. Additionally, Cook would be granted custody of one of the children she is currently carrying. Beyond that, a custody hearing would be scheduled to determine who would be granted parental rights with respect to the other two as-yet-unborn children.

Cook herself noted that the lawsuit calls for a fundamental re-examination of “the basic concept of surrogacy arrangements.” In fact, the potentially precedent-setting case could have a far-reaching impact on family law, affecting the legal rights of surrogate mothers in California, New Jersey, New York and everywhere else in the United States. In New York, for example, state lawmakers have imposed a ban on commercial surrogacy since 1993. However, NY Gov. Andrew Cuomo recently made headlines for his possible support of a lift on the ban.

To learn more about the recent California case, check out the NYPost.com article entitled, “Surrogate Carrying Triplets Sues to Stop Forced Abortion.”

If you are going through a divorce or are embroiled in a custody dispute, the knowledgeable family law firm of Davis & Mendelson, LLC can help you. Our experienced attorneys have decades of experience assisting clients throughout New Jersey. Contact us today to schedule a free consultation about your case.