Supreme Court

Dear SCOTUS, Don’t Waste Your Time

I respectfully suggest that SCOTUS spend its precious time on other cases.

By  
on

Last week, an attorney leading the charge against surrogacy made a public appearance in Washington D.C., along with three previous surrogates, to announce that he was requesting the Supreme Court to review the constitutionality of surrogacy arrangements. Harold Cassidy and his agenda to prove surrogacy exploitative garnered media attention from the Daily Caller and even the Washington Post.

If At First You Don’t Succeed… 

The three women beside Cassidy last week were Melissa Cook, Toni Bare, and Gail Robinson. To readers, these names may be familiar. But let me offer a quick refresher on the specifics.

Cook in California. 

The Cook case was an obvious candidate for a media sensation. I wrote about it in my very first Above the Law column — aw, the memories come rushing back — way back in 2016. Cook was a 47-year old woman who agreed to act as a gestational carrier for a single, deaf postal worker. The postal worker lived in Georgia, but Cook stayed in California throughout the pregnancy and afterward.

Three embryos were transferred into Cook, and although it’s not unheard of for three embryos to all develop, it was a surprise when Cook became pregnant with triplets. When the intended father asked the surrogate to terminate one of the fetuses, Cook objected. The intended father insists that the request was to allow the other two children a greater chance of success, but Cook has claimed that the intended father in fact mentioned that financial reasons prompted his request for her to terminate.

In any event, after the dispute arose, Cook petitioned for custody and legal parental rights to the babies. Because California has a pro-surrogacy statutory regime, Cook’s requests were denied up the ladder of California courts. As her appeals proceeded, sadly rumors regarding the parenting habits of the postal worker father emerged. Even the father’s own sister submitted an affidavit, claiming to have knowledge that the children were not living in healthy conditions. Despite the allegations, the U.S. Supreme Court denied a petition for writ of certiorari in October 2017 on that particular state-court strand of the case.

Sponsored

But obviously, that was not the end of the story. Cassidy had also made a federal case out of the dispute, raising constitutional issues, in addition to the family law questions addressed in state court. That case, too, was rejected, but is now the vehicle to give Cassidy another bite at the SCOTUS apple. And another day in the papers.

Bare in Iowa. 

Like the Cook case, the Bare case was also a total horror show. As you might remember, the case involved a couple that hoped to become parents but who decided to use the Internets, instead of an agency, to find a surrogate. To pay the surrogate, the couple agreed to finance the surrogate’s own IVF treatments once she had delivered their baby first.

But during the pregnancy, the relationship deteriorated swiftly. Bare alleges that the intended parents even used a racial epithet in their communications with her. Ultimately, Bare cut off communication with the intended parents, and did not inform them when she gave birth to their twins 3 months early. Nor did she tell the intended parents when one of the babies tragically passed away, or that she elected to cremate the baby’s body.

With respect to the surviving child, Bare contested whether the intended parents could obtain parental rights, even though she wasn’t related to the baby. In February 2018, the Iowa Supreme Court ruled against Bare — represented by Cassidy — and in favor of the intended parents.

Sponsored

Robinson in New Jersey.

This is the only case of the three where Cassidy enjoyed some success. Robinson had agreed to gestationally carry a child for her gay brother and his partner. The embryo had been formed with the assistance of an anonymous egg donor. When their relationship deteriorated during the pregnancy, Robinson sought to keep the child. With Cassidy’s assistance, Robinson was successful at establishing parental rights — despite having no genetic relationship to the child nor original intent to parent the child — and was awarded visitation to the child, who at least was otherwise allowed to live and be raised by the intended fathers.

New Jersey, of course, was “ground zero” for one of the first media-captured surrogacy disasters in the 1980’s: the Baby M Case. There, a “traditional surrogate” — which is a surrogate who is the genetic mother of the child being carried — literally ran away with the baby. Eventually, the New Jersey judiciary awarded the surrogate, represented by Cassidy, visitation of the child, and the New Jersey legislature later banned surrogacy arrangements in the state. Many theorized that the ban was really about “traditional” or “genetic” surrogacy, but the Robinson case proved that theory wrong.

Send This Man Flowers. No, I’m Serious. I’m Not Being Sarcastic.

The petition in the Cook case was filed with the U.S. Supreme Court in April. For the Bare matter, Cassidy requested an extension to file a writ of certiorari. With an original deadline of May 17, 2018, he asked that the Court give him until May 31, 2018. Why? Cassidy shares in his motion (TMI) that he is suffering from “grossly ossified discs in four levels of [his] cervical spine, superimposed upon a spinal stenosis where the ossified material protrudes into the spinal cord itself.” Ouch.

While Cassidy and I may have fundamentally different views on surrogacy, I would not wish this on anyone. Sending Cassidy best wishes for better health and a quick recovery.

I asked Supreme Court expert, First Mondays podcaster, and Justin Bieber-separated-at-birth-twin Ian Samuel his thoughts on Cassidy’s prospects with the Court.

“This challenge reminds me of cases like Michael H. v Gerald D. where SCOTUS has declined to find Constitutional reach into analogous matters of parental rights and procreation. I have personally known couples that turned to surrogacy in order to have a child. A successful Constitutional challenge to surrogacy generally strikes me as likely to crush the aspirations of many hopeful couples.”

I respectfully suggest that SCOTUS spend its precious time on other cases. Although my sympathy goes out to all parties involved in these arrangements gone south, the reality is that a vast majority of gestational carrier arrangements are positive and wonderful, and allow women who voluntarily wish to help others, to do so.

I am all for states putting in place reasonable protections that would minimize the extreme cases. Here, if SCOTUS were to turn its attention to surrogacy, I am optimistic the Court would unanimously agree that the right to freely enter into a surrogacy contract doesn’t violate any provision of the U.S. Constitution.

Ellen TrachmanEllen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at babies@abovethelaw.com.

Topics

, , , ,