The nitty-gritty of surrogacy arrangements

Editor’s note: This is the second story in a series on surrogacy, which a Minnesota State Legislature commission is studying as it prepares to make public policy recommendations on the practice. Follow the series at www.stcloudvisitor.org.

By Bridget Ryder

When California surrogate mother Melissa Cook reached Harold Cassidy on Thanksgiving morning in 2015, he was the first attorney she found ready to defend her constitutional right to carry to term the three babies in her womb.

Cook’s story has been widely publicized, and on Aug. 16, Cassidy, a Catholic lawyer from New Jersey, brought it before a Minnesota state legislative commission studying surrogacy. The 15-member commission’s final report — due in December — could guide future legislation on surrogacy.

Cassidy highlighted Cook’s story as how legalized commercial surrogacy operates as a profit-driven industry that sacrifices the rights of women and children to protect the interests of its customer, the intended parent.

“In California, you have an incestuous relationship like this: You have an agency that will put together an agreement for a man in Georgia with a woman who will be 48 when she gives birth, a doctor who does a triple embryo transplant without knowing who is going to raise the child, and you have lawyers and hospitals [involved, too],” Cassidy explained to the commission. “It wasn’t like that 20 years ago. It grew to this industry. It started there like it’s starting here in Minnesota, fueled by the money from intended parents, and everyone is going to do what is necessary to satisfy the intended parent.”

Contractual conflict

Cassidy has worked with surrogacy cases for 30 years. He represented surrogate mother Mary Beth Whitehead in the country’s landmark surrogacy case in 1986, the Baby M Case. As a result of that case and a subsequent ethics commission study, commercial surrogacy is illegal in New Jersey and considered baby selling and exploitation of women. In the last 30 years, three more states have prohibited commercial surrogacy, most have left it unaddressed by the law, and a few have legalized it to one degree or another.

According to Cassidy, in places like California where there is an enabling statute, virtually anyone with enough money can have a child through surrogacy. For example, in Cook’s case, surrogacy enabled a 50-year-old, single, deaf man who lives in the basement of his elderly parent’s home to contract for triplets over the Internet. The only screening required was a criminal background check. No one from the surrogacy agency visited his home in Georgia to verify whether or not CM — as the intended father is called in court documents — was suited to raise children.

Also, according to Cassidy, by contracting with a 47-year-old woman as a surrogate and complying with CM’s request for a triple embryo transplant, the fertility clinic and surrogacy agency violated standard medical practice.

The problems of this parenthood-by-contract arrangement soon became apparent.

One month into the pregnancy, CM realized he couldn’t afford to pay for Cook’s frequent visits to the fertility clinic, and he wasn’t sure he could afford to raise even one child.

After consulting his lawyer, Robert Walmsley — part owner of Surrogacy International, which had made the surrogacy arrangement — CM told Cook he wanted her to abort one of the babies.

Cook informed him she would not abort.

The back and forth continued for the next two months, with CM and the surrogacy lawyers first calling for an abortion on the grounds of CM’s deafness and financial situation and then claiming that abortion was CM’s decision to make by rights of the surrogacy contract.

Cook had also been seeking legal advice. Under surrogacy contracts, the surrogate mother has her own lawyer, but the attorney is paid by the intended parents. Cook had contracted Lesa Slaughter of The Fertility Law Firm, a lawyer who also works for intended parents, Cassidy said during testimony in Minnesota.

“That lawyer was conflicted and could not argue for taking the selective reduction provisions out of contract, and she didn’t,” Cassidy told the commission.

When Cook turned to Slaughter again during the conflict over the abortion, Slaughter initially said she couldn’t represent Cook because she has only been paid to represent her during the writing of the contract. To represent Cook, she would have to be paid $400 an hour, which Cook couldn’t afford.

“That lawyer nonetheless communicated with the lawyer for the intended parent about the selective reduction,” Cassidy said during his testimony in Minnesota.

Cook stated in a court declaration that Walmsley wrote to Slaughter in an email, “Triplets for a married couple is hard enough. Triplets for a single parent would be excruciating; triplets for a single parent who is deaf — well, beyond contemplation.” Slaughter replied, “Agreed.” After that exchange, she told Cook she could represent her because CM was now paying her.

“Then, she proceeds to tell my client why she had to have a selective reduction and why she was going to be liable for money damages if she didn’t. That’s incorrect advice; there’s no way she could be sued for exercising her constitutional rights to carry the child,” Cassidy said to the commission.

In November 2015, Walmsley sent a letter to Cook through Slaughter threatening her with monetary liabilities for breaching her contract with CM by not having the abortion and causing him emotional distress. The threats and misinformation nearly brought Cook to the breaking point. The day before she reached Cassidy by phone, she had scheduled an abortion, he told The Visitor. Cassidy takes exception to the repeated claims of surrogacy proponents that women can’t be forced into abortions.

“Women are forced to have abortions all the time,” he said. “This woman, left alone, would have had an abortion that she didn’t want to have.”

In testimony Aug. 30 about the coercive nature of surrogacy, University of St. Thomas law professor and member of the Pontifical Council for the Family Teresa Collett also analyzed surrogacy contracts as favoring the interests of intended parents.

Best interest of the children

In January 2016, before giving birth, Cook filed a lawsuit in California’s family court against CM’s claims on the children through the surrogacy contract and asked for custody, citing the children’s best interests. Legal parentage is granted to intended parents by a court order. The surrogacy contract forms the basis for granting parental privileges, but the final decision lies in the hands of a judge. This is usually done by a pre-birth order sought in the third trimester. California’s family court refused to admit Cook’s claim against the surrogacy contract.

“The court said on the record, what happens to those children is not of the court’s business . . . ,” Cassidy said in Minnesota.

According to its own testimony, though, surrogacy agencies and lawyers consider the best interests of children to be the court’s concern. Gary Debele, a Minneapolis lawyer who writes surrogacy contracts, affirmed that those contracts don’t include any provisions for the interests of the children.

On Feb. 22, 2016, Cook gave birth to the triplets by emergency cesarean section. Cook remained conscious during the operation and could hear the babies cry, but the hospital staff wouldn’t let her see them. Afterward, three security guards were posted outside of the nursery, and hospital staff wouldn’t tell Cook if the babies were alive.

Everyone who visited Cook had to show photo ID and was also banned from seeing the babies. According to Cassidy, there is no legal basis for such actions.

To explain the hospital staff’s conduct, Cassidy cited a study that a hospital makes 120 times more profit from a surrogacy birth than it does from a single birth to a married couple.

Fixing the system

If Minnesota is interested in protecting women and children from exploitation, Cassidy proposed an easy first step — take the money out. If surrogacy is as altruistic as the industry paints it, why not pass legislation that prohibits paying women, Cassidy challenges.

Throughout the commission hearings, surrogacy proponents have pleaded the case of infertile couples and portrayed surrogates as motivated only by a desire to help them. Most of the surrogates who have testified to the commission have borne children for friends, not for strangers.

Yet, at the Aug. 16 hearing, Dr. Lisa Erickson from the Center for Reproductive Medicine in Minneapolis testified that most couples who come to the center for surrogacy don’t have anyone in mind to act as their surrogate. Krystal Lemcke, a representative of the surrogacy agency, My Donor Connection, based in Anoka, Minnesota, also testified that they make surrogacy arrangements for intended parents who come to them from outside of the United States.

According to Matthew Eppinette, executive director of California-based Center for Bioethics and Culture, having a supply of women ready to be surrogates is essential to the industry. Opponents also fear that as countries such as India restrict international surrogacy, the United States will become an increasingly appealing international hub for the practice. But in Cassidy’s experience, altruism won’t motivate many surrogates.

“Every surrogate that I’ve ever represented told me publicly that they did it for altruistic reasons and then privately told me they did it for money and, ‘without the money, I wouldn’t have done it, couldn’t have done it,’” Cassidy told the commission.

According to Kathryn Mollen, the policy and outreach coordinator at the Minnesota Catholic Conference, Resolve: The National Infertility Association, which supports artificial reproductive technology and third party reproduction, opposed legislation to establish the commission now studying surrogacy.

However, it had supported a surrogacy-enabling bill that was passed by the Legislature in 2008, but vetoed by then-Gov. Tim Pawlenty because it didn’t include enough protections for women and children.

In her testimony, Collett, the University of St. Thomas law professor, presented an analysis of the number of births through a surrogate that have occurred in Minnesota since 2011. They represent less than 1 percent of births in Minnesota in any given year.

So far, those testifying for surrogacy have not been individuals seeking the service, but those who stand to profit from it. One of the greatest proponents of surrogacy to the current commission has been Steven Snyder, a Minnesota surrogacy lawyer who, like Walmsley in California, also opened a surrogacy agency.

“Surrogacy is not widespread,” Cassidy told The Visitor. “This can be stopped.”

About The Visitor

The Visitor is the official newpaper for the Diocese of Saint Cloud.

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