Melissa Cook

What happens when the courts require a surrogate to hand over the triplets she carried to an unfit parent?

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After I had my own children— a set of triplets and then one more—and because I’d had awesome pregnancies with them, I thought I would look into surrogacy to help somebody else have a child. I knew I was a 'good oven.' I also needed money. I was a single mom and had just gone through a divorce. I am a mobile notary, where I drive to meet with clients and notarize their loan documents. But money was tight to pay rent and put food on the table--and my car payment and car insurance, and business supplies. I was going to make about $22,000 as a surrogate, and was only making about $20,000 a year as a notary, so this was going to more than double my income. And my kids were old enough to be able to handle it—my triplets were nine years old, and my oldest was eleven. 

I also needed the money to pay for a lawyer to represent me in a custody fight with my ex-husband. I had originally won full custody of my kids--sole legal and physical custody of them. But then my ex-husband filed to try to regain custody of them and move them all to Maine. So then we had to do a child custody evaluation. My ex paid $20,000 for his child custody evaluation, but I couldn’t afford my own child custody evaluation. 

So, I went online and researched surrogacy brokers. The only thing I had heard about surrogacy was what I saw on television and in magazines--like with celebrities--and it all looked good to me. I mean, I didn’t see anything horrible, but then again, I didn’t check into the horribleness of it--of what could happen. I researched different surrogacy companies, and found a company called Fertility Miracles in Beverly Hills. I sent them an email, and filled out an application. It’s like applying for a job. They asked about my health history, my past pregnancies, my personal life, my mental health, everything. And I had to do a physical, with a doctor they appointed. And blood work done. Everything to make sure I was healthy, no diseases, and had an intact uterus. The doctor never talked to me about any risks or harms, none at all, but I was found to be a good candidate. So then the surrogacy agency posted me on its website as a candidate, and a same-sex couple found me on the website and wanted to meet me. I met them at a coffee shop, along with people from the agency.

The couple--a gay couple--already had one child by a surrogate, but wanted a second child, using the sperm of the other guy in the partnership. They couldn’t use the same surrogate they had used before because she had developed complications in the pregnancy and their child had to be delivered early, at something like 26 weeks. So, she was disqualified. They provided the lawyer who represented us both, and there was no negotiating the contract, as everything seemed fine and legit and fair to me. I got a 9 to 5 job to be able to provide health insurance. They also chose the fertility doctor for the pregnancy. 

The couple wanted only one child—they were clear on that—but they had two embryos implanted into my uterus, just to increase the odds of one successful birth. As it turned out, only one embryo took, but then I ended up miscarrying with the second one eight weeks later, for no known reason. I bled so much, I never knew my body had so much blood in it before. I was cramping so bad and bleeding so heavily. I went to the emergency room, and they basically said there’s nothing we can do, so it was terrible. I attempted to go back to work a few days later, but I was just bleeding so bad. The miscarriage was devastating, because the baby daddy put the blame on me, like he got pissed off, because it didn’t work out. In a text to me, he said, “I can’t believe this is happening. I’m so upset.” And I’m thinking, “Wow! How do you think I feel going through a god awful miscarriage and knowing it was for somebody else and that I failed?!” I felt like a total failure. The couple quit paying me after the miscarriage, of course. But then I went to the fertility doctor, and the doctor explained to the couple, “Look, the miscarriage was not Melissa’s fault. It just happens sometimes, we have no idea why, but there’s no reason why she can’t carry a baby, and I feel very confident she’ll get pregnant,” and so the couple decided to use me again. 

I had to wait some before trying again, because of a uterine infection I developed from the miscarriage. (It sucked. It was a gross, stinky discharge, and I had to take antibiotics for a certain period of time until it cleared up.) But then I was good to go, and so I went through another cycle of hormones, and was again paid monthly—$200 per month. And I got pregnant again. 

My kids ended up moving away to Maine--my ex got custody of them--and they went to live with him and his mom. The miscarriage happened while the court was deciding who should get custody. As I said, I couldn’t afford my own child custody evaluation, and the judge said, “Well, if I had your evaluation, I would be in a different position, but I only have one evaluation—your husband’s—so the kids will move with him to Maine.” I went into surrogacy again to keep my mind off of my children being gone. It was terrible. My ex was supposed to send them to visit me, but he couldn’t afford to.

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This second surrogacy pregnancy went fine. Only one healthy embryo could be found, so only one was implanted in me. I delivered at 38 weeks---a healthy baby boy, as cute as can be. I would have breastfed him, but that kind of thing is the parents’ choice, and the couple didn’t want me to. I think they felt that it risked too much of a bonding experience for me to breast-feed. I pretty much said goodbye to the baby the day he arrived. I was happy, but it was bittersweet. I just wanted to spend some time with him, but I knew he wasn’t mine. I left him there at the hospital with the couple. But I kept in contact. I went ahead and pumped breast milk for their son—they paid me for it for a while, but then they stopped after like six weeks or something because they couldn’t afford it. But for the baby's sake,  I gave it to them after they stopped paying me anyways. 

Because that surrogacy experience was successful, I decided to do it again. I still needed money to be able to pay for my kids to come visit me, and to spend summers with me, and for me to be able to visit them. At this time I was 48 years old, and some surrogacy agencies thought I was too old. But I found an agency called Surrogacy International, and they ended up finding a match for me. I was asked, “Are you opposed to having a child for a single, deaf male?” After thinking about it, I decided there was no good reason why a man’s disability should prevent him from having a child. And so we went to contract. The lawyer for the baby daddy was also the owner of Surrogacy International, but I went back to the lawyer I had used for my first surrogacy to review the proposed surrogacy contract. But honestly, the contract was so long and impossible to completely understand. I forget how many pages it was--maybe fifty or more, something crazy. It was huge. 

My lawyer seemed to rush through her review of the contract, but advised me of several changes to make, like the baby daddy should put more money into the escrow account, and to get rid of the requirement that I not be allowed to marry my boyfriend until a year after the baby was born, in case he claimed any parental rights to the child born. My boyfriend didn’t want me to be doing this surrogacy pregnancy. 

This time I was to be paid $28,000, with $6,000 more for each additional child born, and also an extra maternity clothing allowance if I became pregnant with multiples, and more if I had to have a caesarean-section delivery, and certain things like that. 

This time, three embryos were implanted into my womb. I had never met the intended father at this point--I only talked to him via email—but he was online the day of the transfer of the embryos. Although there were also a lot of healthy girl embryos available, the baby daddy only wanted a boy, only boy embryos. The fertility doctor said to him, “We’ve got two really good boy embryos, two of them are really good quality. There is also one little one, but I don’t think he’ll make it whether he goes in or not.” My God! I felt bad for him! I’m like, “Well, let’s give him chance. He deserves a chance as much as his two brothers.” The baby daddy said it was my decision, so the third boy embryo was implanted in me too.

I swear I felt them take. I know this is weird, it’s not right, but I swear I felt a little boop, boop, boop. I swear! And I told my friend, “I’m going to have triplets!” And I texted the baby daddy, and said, “Whoopie, your three sons are all snug as a bug in a rug!” He replied, “Let’s hope. Pray.” I took a pregnancy test five days later, and it came up positive already. And then I went in for an ultrasound, and the doctor was amazed, seeing that all three were alive. “Triplets!,” the doctor said, “You’ve got a Wonder Woman uterus!”

But that was the last happy event in my pregnancy. About six weeks later, I got a text from the baby daddy. He said, “I’m not sure that I can have three kids after all. I’m not sure if I even want one. Can you think about aborting?” I’m like, “What?! Are you kidding?? These babies aren’t going anywhere! I’m pregnant. You approved putting three in, and that’s what you’re getting!”

I spoke with the agency owner about this text, and he said, “He’s just stressing out right now, but everything will be fine. We don’t even know if all of these kids will even take yet, because you’re still very early on in the pregnancy. There’s a chance it could reduce on its own.”

But shortly after that, I started bleeding. I went to the doctor to make sure that me and the babies were still okay. But when the baby daddy learned about the visit, he emailed the doctor saying that I had to stop going to him, it was costing him too much money, and he couldn’t afford it. It turns out that the baby daddy's job was at a postal facility in Georgia, and although he’d saved up money for surrogate children, he wasn’t earning very much at all.  And then when I ran out of medication needed to keep the pregnancy safe and on track, the baby daddy also insisted that he could no longer afford the medication, and it was stopped until he could get some money together to pay for it. 

By then, I was a mental case. I started therapy, and the therapist wanted me on anti-depressants. I was concerned that that would be hard on the babies, but the therapist said it would be more harmful to both them and me if I don’t take the anti-depressants, given my mental state. 

I was an emotional wreck. Up until I was five months pregnant, the baby daddy waged a nonstop campaign to get me to abort the babies I was carrying.  He said he was sorry to have to reach this decision, but that it was his decision to make. He said he was afraid he couldn’t afford it--three kids--and if one of them came out like retarded or with some weird special needs, requiring a life time of medical expenses, he’d never be able to manage. I started getting emails and calls from the head of the agency—his lawyer—and he’s also now insisting that I reduce the pregnancy. Meaning, take one or two of the babies out. But I’m like, “I’m not doing that. I’m not aborting a healthy baby.” And the agency owner said, “But these are his children,” and I said, “I don’t care if they’re his children. They are mine while they’re in me. And they’re not going anywhere. I’m protecting them. How would you feel if you were an unborn baby and you were going to have your life taken away from you? Just because your dad can’t afford it.” 

But I kept wondering what was going to happen, you know. If the baby daddy didn’t want them, I decided that I would have to take them. That was my mindset. I would figure it out, somehow, even though I couldn’t afford them myself. The therapy wasn’t really helping me. I was a horrible mess through the whole rest of the pregnancy. 

And then both the baby daddy and his lawyer—the agency owner--began to threaten me with messages and by phone, saying that if I didn’t reduce or abort, they would not pay me for delivering any of the babies. They claimed that I was in violation of my contract. So, I called my own lawyer for help. But she said, “These are his children. I had twins via surrogacy, and I don’t wish what I went through on anyone else, because they were born early, with developmental problems.” I said to her, “Well I’ve had triplets before and they came out healthy!” 

But my own lawyer wasn’t on my side either. Not at all. She tells me, “You’re gonna face financial disaster, because you’ll have to pay for the children’s lifetime of care, if they come out and something is wrong.” And I’m like, “What?! I have to pay for their care?!” And she says, “Yes, a lifetime of care. You’re on the hook for it. These are his kids. It’s his decision.” And I go, “But it’s in my contract that unless there’s a medical reason…and they’re healthy, there’s nothing medically wrong. It’s not his decision. I’d rather live broke, knowing I gave birth to these kids, than going through an abortion, and living with that, and knowing they could have been born healthy.” 

But they all insisted that I was in violation of the contract, and the payments to me stopped completely. They wouldn’t give me the maternity allowance. They put pressure on me until I was 20 weeks pregnant. I was covered under my own insurance policy for the medical expenses, but the insurance company put a lien on my surrogacy compensation, because the policy doesn’t cover surrogacy. So every surrogacy-related expense they weren’t responsible for, and so they put a lien on the surrogacy payment.

At 20 weeks, these babies were kicking inside me. But because everyone was telling me to go see an abortion specialist, I finally agreed to go talk to one, even though I  knew I wasn’t going to have an abortion. I asked the specialist about the reductions, “So how do you do it?” And she said they stick a needle in your stomach, and they go after who ever they find first. And then I go, “So what happens after you inject it, with a lethal injection?” And she said, “the baby will stay, it will just get smaller because it will be dead, and then we’ll remove it once you’ve delivered the other two.” And then, I’m like, “Hell no! He’s not going to stay in there with his brothers. His brothers aren’t going to stay in there with their dead brother! For what reason?! Because the guy changed his mind? No way!”

So I continued with my pregnancy, and got grief from my lawyer, the surrogacy agency, and from the baby daddy. They were totally bullying me. They all kept threatening to cut me off, and then they did. When I refused to have the abortion, my lawyer said, “You went against me, went against my advice. I’m no longer representing you.” And Surrogacy International, the agency, dropped me like a hot potato, and that’s when the payments stopped. 

I went online trying to find stories like mine, of being pressured to have an abortion, and how to get help. And through that investigation, I was connected with a lawyer in New Jersey by the name of Harold Cassidy, who had handled these kinds of cases before. I heard back from Harold on Thanksgiving Day, saying he’d represent me, and that he was going to go into court for me to try to help me get custody of these kids, even before they were born. 

It was a tough pregnancy all the rest of the way. I got gestational diabetes and physically, I felt terrible. I had to sit all the time. Every time I stood up I was so dizzy. And I had to cut off work early, because I actually almost passed out at work. My blood pressure would drop really low, really fast. I had to stop working at 26 weeks. I took a leave of absence, but then because after I had the babies I still needed some leave time to recover, they didn’t hold my job for me. I didn’t have a job to go back to. 

At 30 weeks, I started having contractions, and the doctor said I was in the beginning stages of labor. I was hospitalized, and then I was dilating, and then when I got to five centimeters, the doctor said we’re doing a c-section, because the babies would come out all tangled in a natural birth, like their umbilical cords were wrapped around each others’ necks and all of that. Too risky.  And so he did an emergency c-section. A friend was there with me, but the doctor wouldn’t allow her into the delivery room, because apparently the baby daddy had instructed the doctor that he didn’t want anyone else in the delivery room. The baby daddy, in the meantime, stayed in Georgia, where he has always lived. He never came out to meet me. He never wanted to meet me. I never met him. 

I had my lawyer, Harold Cassidy, contact the surrogacy agency to let them know that I was in labor. But then, right after I gave birth to the triplets, security guards were posted on my floor at the hospital, carrying out instructions not to allow anyone access to see the babies who didn’t have an authorized ID. The surrogacy agency had arranged all of this. I wasn’t allowed to see the babies. They were taken away from me as soon as they arrived in this world, and I wasn’t allowed to see them. No one at the hospital would even tell me how they were doing, or whether they were even still alive.

Harold went back to court to say, “This situation is ridiculous!”, but the judge shot him down because of the surrogacy contract. “It’s all in the contract,” the judge said, “It’s all as specified by the intended parent.” I just provided the body, basically, and had no rights whatsoever.

The hardest part for me was the not knowing. Were the baby boys even alive? I’m in the hospital, recovering two or three days after the c-section, and my daughters are there for me, wanting to see the babies, knowing they’re in the hospital. They said it was like trying to get into Fort Knox even to be able to come visit me. I had breast milk, but the baby daddy refused my breast milk for the babies. I said, “Well, I’ll just give it to him," but no, it was refused. So I donated my milk to a charity. 

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They just cut off all communication with me. I’ve never heard from the baby daddy ever since. The last time I heard from him was when he was saying he was sorry but he wanted to continue with the abortion. He’s so fucking ungrateful! He got those children, and he hates me, and he didn’t pay for them. And you know what, I wouldn’t take any money from him anyway. I sent an email to the surrogacy agency and told them that if he ever decided he wanted to pay me, I didn’t want his money, because it is too much like he’s buying them from me.

Later on, I heard a little about how the triplets were, when I was notarizing a loan for this woman who worked at Kaiser, my insurance company.  She said she remembered me and my story. She told me that nobody—not the baby daddy or anybody else—came to visit the babies for the first few weeks after they were born. They were in the hospital for three months, because they were premature. The baby daddy came to see them only once during that time, for a few days, and then left. The nurses made the baby daddy take classes to learn how to change a diaper, as he had no clue. He had no clue how to feed babies either. And then a couple of nurses had to fly with him when he finally picked up the babies and flew with them back to Atlanta. And he didn’t have a nursery set up in his home, or anything, and so the nurses had to set everything up. And then the nurses called child services in Atlanta, because they said this guy doesn’t know how to take care of a baby. But then, child services didn’t do anything.

Harold Cassidy spoke with the baby daddy’s sister, and the sister confirmed everything that the nurses had said. The sister was also concerned about her brother raising these children. She said he’d only wanted them because he was bored. I was impressed with her courage to come forward with her information about her brother. She risked being alienated from her family for talking. But she feared for the boys’ safety, just like I did.

My lawyer kept fighting, taking my case up to the Supreme Court twice, but the Court wouldn’t hear it.

All of this has been devastating for me. This whole thing affected my kids and my boyfriend big time too. For my boyfriend, it was hard on him, seeing me go through this. The toll it was taking on me, and it took a toll on our relationship. He’s sad, and sad to see me sad. My kids feel bad for me too. 

Commercial surrogacy shouldn’t be allowed. You can’t envision everything that could happen and put it all into the contract. At least with my first surrogacy experience, the law required that I had to go to court to formally relinquish the child to the intended parents, and so there was a kind of hearing that took place, that would have allowed me to claim that they were unfit parents and I couldn’t relinquish the child because it wasn’t in the child’s best interest to be with them. I had rights, and the child had rights. But where it’s all just-according-to-a-contract, there is no regard for the best interests of the child, and there is no screening of the parents’ fitness. I had to go through a background check and through a psych evaluation to make sure, you know, that I was fit. But these intended parents, they don’t have to do shit. You know—where is their background check? Where’s their psychological evaluation? In court, the judge handling my case said that the contract is everything, and that the law doesn’t permit him to consider the best interests of the children. The judge literally said that.  What happens to the children is none of his business.

I try not to think of the babies, and what I went through. But not a day goes by when I don’t catch myself thinking about them, and the horror story that has played out ever since. It happens every single day. I’m always wondering what’s going on with them. I feel so bad for them. Those babies never deserved this.

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In the 12-page legal brief filed by New Jersey-based attorney Harold Cassidy, allegations were made by the birth father’s sister that called into question his ability to care for the children. The sister provided an affidavit which disclosed disturbing information because she “felt a deep moral obligation to take action to protect the three children and give them a chance at life.” In that document, the birth father, identified only as C.M., is accused by his sister of keeping the then18-month-old boys in “deplorable” living conditions in the basement of his invalid parents’ home in Georgia. C.M.’s father, who is very ill and has a severe heart condition, is a habitual chain-smoker at the home where the babies live, she reported. The babies are exposed to the cigarette smoke which is so thick that the nurses found it difficult to breathe. C.M.’s mother is bed-ridden and requires a home aid to care for her and change her diapers.  

One of the most disturbing allegations in the document describes how C.M. had allegedly been forcing the three young children to eat some of their food off of the dirty floor in the house, and that he refuses to change the boys’ diapers as often as needed because he doesn’t want to spend the money. At one point, this resulted in rashes that were so serious that the babies had to be treated at a local hospital.

She also alleged that her brother was known to disappear from the house, leaving the infants unattended, for hours at a time. On a recent visit to the house, she observed that the toddlers appeared “unnaturally quiet and did not speak and did not interact with the adults.” She also alleged that her brother suffered from “serious personality and mental problems.” She painted a disturbing portrait of her then 51-year-old single brother, who is single, deaf and has spent most of his life living with his parents. According to his sister, C.M. is depressed, has anxiety, a paranoid personality disorder, irrational anger fits, has pulled his own hair out, and has a history of being cruel to family pets — even killing them. Her brother allegedly also shared the house with a 28-year-old nephew, described as a heroin addict who has sold drugs out of the residence.

CM’s sister told the Court, “If C.M. applied to adopt a child and a home inspection was conducted, he would never have qualified to be an adoptive parent. If he was required to take psychiatric examinations, he could never have qualified.”

The court found that C.M.’s inability to care for the children was known to the surrogacy broker which profited from the arrangement. At the beginning of the dispute, he wrote “Triplets for a married couple is hard enough. Triplets for a single parent would be excruciating. Triplets for a single parent who is deaf is — well beyond contemplation.”  

But pursuant to the provisions of the California surrogacy statute being challenged, anyone — regardless of their suitability, age, living arrangements, inability to care for children, and even if they are not genetically related to the child produced by the arrangement — can buy a child and force termination of her mother’s parental rights, even if such termination and separation is harmful to the child.

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During a hearing of the case, C.M. v. M.C., the California court stated: “What is going to happen to these children once they are handed over to C.M, that’s none of my business. It’s none of my business. And that’s not part of my job.”

A three-judge panel of the Ninth Circuit unanimously upheld the lower court decision to deny Melissa Cook’s attempt to intervene in the triplets’ lives, saying the court lacked jurisdiction over the matter. In addition to the federal court’s denial of Cook’s plea, the case had also progressed through the California state court system and received an adverse ruling from a state appellate panel. Thereafter, the US Supreme Court declined to hear the case, thus leaving the lower court decision in place.


Sources for this story


Recorded and transcribed interview conducted with Melissa Cook



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