Is a Surrogate a Mother?

According to a lawsuit filed on Cook’s behalf in United States District Court in Los Angeles earlier this month, C.M. is a 50-year-old single man, a postal worker who lives with his elderly parents in Georgia. Cook never met him in person, and because C.M. is deaf, Cassidy says the two never spoke on the phone or communicated in any way except via email. In May, Cook signed a contract promising her $33,000 to carry a pregnancy, plus a $6,000 bonus in case of multiples. In August, Jeffrey Steinberg, a high-profile fertility doctor, used in vitro fertilization to implant Cook with three male embryos that were created using C.M.’s sperm and a donor egg. (According to the lawsuit, the gender selection was done at C.M.’s request.) When an egg donor is under 35, as C.M.’s was, the American Society for Reproductive Medicine strongly recommends implanting only one embryo to avoid a multiple pregnancy, but some clinics will implant more to increase the chances that at least one will prove viable. In this case, they all survived. For the second time in her life, Cook was pregnant with triplets. And soon, the virtual relationship she had with their father would fall apart.

Cook and C.M. are still strangers to each other, but they are locked in a legal battle over both the future of the children she’s going to bear and the institution of surrogacy itself. Because she’s come under pressure to abort one of the fetuses, Cook’s case has garnered some conservative media attention. This story, however, is about much more than the abortion wars. It illustrates some of the thorniest issues plaguing the fertility industry: the creation of high-risk multiple pregnancies, the lack of screening of intended parents, the financial vulnerability of surrogates, and the almost complete lack of regulation around surrogacy in many states.

The United States is one of the few developed countries where commercial, or paid, surrogacy is allowed—it is illegal in Canada and most of Europe. In the U.S., it’s governed by a patchwork of contradictory state laws. Eight states expressly authorize it. Four states—New York, New Jersey, Washington, and Michigan—as well as the District of Columbia prohibit it. In the remaining states, there’s either no law at all on commercial surrogacy or it is allowed with restrictions.

California is considered a particularly friendly place for surrogacy arrangements. In 1993, a California Supreme Court ruling, Johnson v. Calvert, denied the attempts of a gestational surrogate named Anna Johnson to assert maternal rights. (A gestational surrogate is one like Cook who has no genetic relationship to the fetus or fetuses she caries.) What mattered in determining maternity, the court ruled, were the intentions of the various parties going into the pregnancy: “Because two women each have presented acceptable proof of maternity, we do not believe this case can be decided without enquiring into the parties’ intentions as manifested in the surrogacy agreement,” the court said. It was a victory for Walmsley, who represented the couple who’d hired Johnson as their surrogate.