WASHINGTON — Three women who had harrowing experiences with surrogate pregnancies are petitioning the Supreme Court to clarify the rights women and children have.
Earlier this week, surrogate mothers Melissa Cook, Gail Robinson and Toni Bare who say they were exploited by the fertility industry, spoke at the National Press Club alongside their attorney, Harold Cassidy, and shared their experiences and what they're asking the high court to do. In all three pregnancies an anonymous egg donor supplied the ova; none of the surrogate women were genetically related to the children they carried. The three women all signed gestational surrogacy contracts and each of them ended up in thorny litigation.
Cook, who had filed a petition in the U.S. Supreme Court last summer but was denied a review in October, filed another petition — a different court proceeding though it involves the same facts and dispute — which was docketed on April 30. She describes her experience with surrogacy as a "horror" story.
"I no longer view surrogacy arrangements in the same favorable light I once did," Cook said Wednesday in remarks shared with The Christian Post.
"Children derive a special benefit from their relationship with their mother. What is best for the children is always pre-eminent. When a mother knows that their child is entering into a situation that is not in their best interests or, as in my case, downright detrimental to them, they have a right to object."
The intended parent and his attorney in Cook's surrogacy contract demanded that she abort at least one of the babies upon discovering she was carrying triplets. Multiple embryos are routinely implanted in gestational surrogates in hopes that at least one will take. Cook, being pro-life, refused to abort any of the babies.
"A mother develops a sense of what is best for a child she loves, and I love these children. No state, no court, and no nation should ever rip a baby out of the arms of a mother who loves her child, and who is perfectly fit and who accepts the responsibility of caring for the child she carried," she said.
When the triplets were born via c-section in February 2016, the hospital staff took the babies from Cook and refused to let her see them, she recounted. The newborns were only 28 weeks post conception in age and she was concerned for their health. But the hospital would not allow her to know about their condition or even basic facts like their weights during their eight weeks in the neonatal intensive care unit.
The hospital reportedly posted two security guards on her floor to ensure she wouldn't attempt to see the babies, and required everyone who came to visit her, including her other children, to show identification. "That experience was dehumanizing and no mother should ever be treated that way," she said.
Cook said she learned not long ago that the hospital had to send three nurses to Georgia to set up a nursery and that the nurses had contacted Georgia Children's Services because they believed that the intended parent, Charles Moore, a postal worker from Georgia, was unfit to be a father.
Those concerns were shared by children's rights advocate Katy Faust, founder of Them Before Us, whom CP interviewed following the Washington state legislature's approval of a bill legalizing commercial surrogacy.
Faust, who actively lobbied against the surrogacy legislation in Washington, noted in a March 6 radio interview with Janet Mefferd that Cook's three babies, after they were finally transferred into Moore's care, had been seen at the local hospital due to neglect and that Moore had a history of mental illness, pulling out his own hair, and killing household pets.
Cassidy said in his remarks Wednesday that the United States has laws guarding against the exploitation of women and the treatment of children as property.
"We do not now nor could we ever condone and enforce a practice that plans in advance of conception to separate a child from his or her mother," he said.
"A child's best interest are of paramount concern and each child has a right to know, love, and establish a healthy relationship with his or her mother. No civilized society can treat a woman as an inanimate object or expect a mother to ignore her natural moral duty to her child."
Yet such are the expectations routinely placed on women in third party reproductive contracts, he said.
Cassidy explained in an interview with The Washington Post Wednesday that the nature of legal surrogacy arrangements prevents "a child being placed where it's in the child's best interest."
"It is surprising and disturbing," he said, noting that many lower courts have declined to rule on the complicated questions that arise from surrogacy and instead make the issue about enforcing contracts. But when dealing with a life of a child, "there are rulings that have to be made."
In an email to CP Friday, Cassidy added that "because of the important fundamental rights involved, there is a need for the constitutional issues to be decided before surrogacy becomes widespread."
Half of all U.S. states have not held that surrogacy contracts are enforceable and in the states that do enforce them, state courts have strongly protected their state law, he added.
Yet the violations of the constitutional rights of the children and the mothers have now been raised in two states and the federal courts, and in all three instances, the courts have refused to decide questions pertaining to the violation of a child's right "to be free from commodification and free from state enforced sale of the children; the children's reciprocal right to their relationship with the only mother they have; and the children's right to have their custody placed based upon what is in their best interests."
"That is a clear dereliction of the courts' obligations," he maintained.
Cassidy further noted that the Iowa Supreme Court has refused to rule on the federal rights of the mother based upon federal constitutional law, and has skirted deciding these matters "by claiming, incorrectly, that the signing of a document before the child even came into existence operated as a waiver of the child's rights and those of the mother."