Surrogate Mothers Ask Supreme Court To Recognize Their Rights

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Kevin Daley Supreme Court correspondent
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Two surrogate mothers are petitioning the U.S. Supreme Court to give greater credence to the constitutional rights of surrogates in custody disputes.

The surrogates claim that legal disputes relating to in vitro fertilization are generally controlled by exploitative contracts, which betray a reproductive regime that commodifies women and children.

“Melissa and Toni have faced hostile laws that challenge and denigrate the relationship a mother has with her child,” Harold Cassidy, an attorney who represents the mothers, said at a Wednesday press conference. “However, motherhood is never outdated, and the rights and interests of the children to their relationship with their mother will never be abrogated.”

The first surrogate mother, Melissa Cook of Los Angeles, gave birth to triplets at the behest of a Georgia man named Chester Moore Jr., known only as “C.M.” in court documents. Moore hired Cook for $33,000 to carry three ova fertilized with his sperm. A 20-year-old donor provided the ova. Surrogates sometimes carry multiple embryos, in the event one egg develops abnormally or is not viable.

In this instance, however, all three embryos developed successfully, prompting Moore to demand Cook terminate at least one of the fetuses pursuant to the terms of their surrogacy contract. Moore, a mute postal worker who lives with his invalid parents, said he lacked the resources to support the children. (RELATED: Supreme Court Clears Way For Legal Sports Betting Across The Country)

In turn, Cook offered to raise one of the children, but Moore refused. Moore and his attorney then threatened to sue Cook for breach of the contract, prompting Cook to file a civil claim in California state court. She argued the underlying surrogacy contract is unconstitutional and therefore unenforceable.

Once the babies were born, hospital personnel expressed serious concerns about releasing them to Moore’s custody. His sister, Melinda Burnett, told People magazine that the children are kept in “deplorable” conditions and that Moore is mentally ill.

Still, Moore assumed charge of the children, and they live with him in Georgia as of this writing.

The second mother is Toni Bare of Muscatine, Iowa. According to the Des Moines Register, she carried two children for Paul and Chantele Montover, who agreed to pay her $13,000 on the successful completion of the pregnancy. As personality conflicts evolved into substantive disagreements about the trajectory of the pregnancy, the Montovers used racial epithets against Bare and her husband. Bare is black and her husband is Hispanic.

By the third trimester, Bare and the Montovers were only communicating sporadically through attorneys. When Bare gave birth and lost one of the children, the Montovers were not notified for several weeks. The couple regrets that the deceased child was not disposed of in accordance with their religious beliefs.

Bare refused to surrender the second child, given her concerns about racial animosity in the Montover home, though they ultimately won custody.

At this stage of their cases, the women are not litigating the merits of their claims. Rather, they are fighting for the right to argue that their surrogacy contracts are unlawful. Federal courts and state courts in Iowa and California have refused to hear the constitutional challenges both women have raised against the surrogacy contracts, finding the agreements control all disputes relating to the arrangement.

Cassidy says these rulings confine women to exploitative arrangements without recourse to their legal rights.

“This case involves some of the most important fundamental rights and liberties protected by the Fourteenth Amendment, and illustrates the importance of citizens being able to litigate their federal constitutional claims in a federal court,” their petition to the Supreme Court reads.

Surrogacy is unlawful in Europe and China. There is no federal law governing such agreements in the U.S., leaving states as the primary regulators of such contracts. Rules vary between jurisdictions.

A response to their petition is due by May 30.

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