Rich Vaughn Blog, IFLG: CA Court Rules Surrogacy Is Constitutional

California Court Rules Surrogacy Is Constitutional

A just-issued ruling from a California appeals court upheld the legality of properly executed surrogacy agreements and stated that a properly executed surrogacy agreement does not violate the constitutional rights of the surrogate or children born via surrogacy.

The case made headlines in 2016, after a surrogate who entered into an agreement to bear a child for a single father later changed her mind and sought custody.

The surrogate was implanted with three embryos created from the intended fathers’ sperm and a donated egg. All three embryos were viable.

Before becoming pregnant, in signing the agreement, the surrogate, Melissa Cook, agreed to selective reduction of multiple embryos if necessary for medical reasons. Doctors advised the intended father that multiple births would be risky, and the father requested that Cook selectively reduce for medical reason upon the physicians’ recommendation.

Despite the terms of the agreement, Cook refused to reduce. The triplets were born several weeks early and survived. After their birth, she filed for custody of one child, with custody of the remaining two left to be determined in their best interests. In her later lawsuit, Cook claimed the intended father requested the reduction because he could not afford to raise three children and used that claim to prove the intended father was unfit to be a parent.

Representing Cook was anti-surrogacy lawyer Harold Cassidy, perhaps best known for representing surrogate Mary Beth Whitehead in the notorious 1987 “Baby M” case, in which Whitehead agreed to carry a baby for an infertile couple, then refused to give the baby up. Cassidy has since waged an ongoing campaign to outlaw surrogacy.

In the Cook case, Cassidy argued that the surrogacy agreement violated the constitutional rights of both surrogate and the children born via surrogacy, claims that the California court ultimately denied. After losing in state court, Cassidy petitioned the U.S. District Court, which dismissed the case, sending it back to the state appellate court.

Under California law, “intended parent or intended parents identified in the surrogacy agreement” are to be declared the sole parents of children born to a surrogate, the court wrote. From the recent decision:

Permitting a surrogate to change her mind about whether the intended parent would be a suitable parent—or requiring a court to rule on whether the intended parent’s conduct subsequent to executing an assisted reproduction agreement is appropriate for a prospective parent—would undermine the predictability of surrogacy arrangements. We agree with the observation of the federal court in Harding, supra, that, were M.C.’s position to be accepted, we are “at a loss to imagine an intended parent in this state who would contract with a gestational surrogate, knowing that the woman could, at her whim, ‘decide’ that the intended parent or parents are not up to snuff and challenge their parenting abilities in court.”

In prior case law, the California Supreme Court rejected constitutional challenges to surrogacy agreements and ruled that such agreements are consistent with the public policy of California, the ruling continues.

Cook’s suit also claimed the surrogacy agreement violated the babies’ constitutional rights by preventing them from having a relationship with their mother and by allowing them to be “commodified” via payments made to offset the surrogate’s expenses and inconvenience. From the state appellate court ruling:

The first claim is a direct challenge to the legitimacy of surrogacy arrangements. If a child’s liberty interest in a relationship with its birth mother trumps the surrogate’s right to enter into a contract agreeing to surrender the child to intended parents, then no surrogacy arrangement is possible…. It would also run afoul of the court’s observation that “[t]he argument that a woman cannot knowingly and intelligently agree to gestate and deliver a baby for intending parents carries overtones of the reasoning that for centuries prevented women from attaining equal economic rights and professional status under the law.” (Id. at p. 97.)

The opinion in Calvert also precludes M.C.’s argument that surrogacy agreements impermissibly result in the “commodification” of children by permitting their sale…. [P]ayments to M.C. under the Agreement were for the stated purpose of “compensation for her discomfort, pain, suffering and for pre-birth support” and for living expenses. Moreover, M.C.’s argument that she could not enter into the surrogacy arrangement in exchange for compensation also amounts to a wholesale attack on the legitimacy of surrogacy contracts…

In this case, the California court ruled properly to uphold state law validating the legality of surrogacy agreements and the parentage of intended parents. As the decision correctly reaffirms, in the case of surrogacy the child or children would never have been conceived were it not for the intention (and significant financial contribution) of the intended parent(s). This case upholds the constitutionality of surrogacy, an important ruling as we enter a political era when attacks on reproductive (and other) freedoms will undoubtedly become more frequent.

Rich Vaughn
Richard Vaughn

Attorney Rich Vaughn is founder and principal of International Fertility Law Group, one of the world’s largest and best-known law firms focused exclusively on assisted reproductive technology, or ART, including in vitro fertilization (IVF), surrogacy, sperm donation or egg donation. Rich is co-author of the book “Developing A Successful Assisted Reproduction Technology Law Practice,” American Bar Association Publishing, 2017.

Peiya Wang
Paralegal (律师助理)

Peiya Wang joined IFLG as a paralegal in 2015, where she manages surrogacy, egg donation and parental establishment cases and provides translation services for many of IFLG’s international clients. Peiya received her bachelor’s degree from Beijing Technologies and Business University, where she majored in Marketing. She moved to the United States in 2012 to attend Northeast University in Boston, Massachusetts, receiving a Master of Science degree in Global Studies and International Affairs in 2014. Peiya moved to Los Angeles in 2015 and received her paralegal certification from UCLA Extension. When away from the office, Peiya is a dragon boat paddler and a ballroom dancer, where she favors Rumbas and Cha-chas. She is fluent in Mandarin and English.

Luis Sosa

Luis R. Sosa joined IFLG as a paralegal in 2016, where he enjoys pursuing his passion for family and reproductive law. While working toward his bachelor’s degree at Florida International University, Luis worked as a paralegal and legal assistant for family law litigation firms in Miami and Washington, D.C. As a paralegal and case manager for IFLG, Luis, who is bilingual in English and Spanish, manages surrogacy, egg donation and other reproductive law cases. In addition to spending time with husband Randy and dog Marty, Luis enjoys being outdoors and appreciating the arts.

Toni Hughes

After receiving her B.S. in Business Management, Toni joined IFLG to pursue her dream of working in the legal field. As a Paralegal with over 10 years of experience in the assisted reproduction technology field, Toni is our Managing Paralegal, responsible for training and managing our paralegal staff. From drafting legal documents to assisting our clients with post-birth matters, Toni embraces the challenge of learning something new in this field each day. Besides spending time with her son, Jordan, Toni enjoys exploring new things, cooking, spending time with family and friends, and serving as a Youth Advisor for “Next Generation.”

Miesha Cowart
Financial Coordinator

Miesha Cowart joined IFLG as a financial specialist in 2014 following a successful career in development and business finance. Miesha previously worked for 10 years in the construction industry as a controller and for 13 years as Development Coordinator for the non-profit U.S. Fund for UNICEF. In her free time, Miesha works with “Next Generation” at her church. “They are my heartbeats!” she says of the youth in her community.


Kim has over 25 years of experience in the legal field and has worked exclusively in surrogacy and assisted reproduction law since 1999. Kim is a senior case manager of surrogacy and egg donation cases, and is also responsible for managing parental establishment cases and interacting with IFLG’s Of Counsel attorneys across the country. With three children of her own, Kim understands the importance of family and finds working in this area of law a rewarding experience.

Rich Vaughn

Attorney Rich Vaughn combined his personal passion as a father of twin boys born via assisted reproductive technology (ART) with more than 20 years of experience in business and technology law to build International Fertility Law Group. Today IFLG is one of the most successful and best-known law firms in the world focused exclusively on fertility law, helping thousands of intended parents through empathetic listening, compassionate guidance, and unmatched legal expertise. As an advocate for reproductive freedom, Rich also contributes his knowledge and time to improving the understanding and practice of ART law, most recently as a founder of and speaker at the first Cambridge University International Surrogacy Symposium held in June 2019, as immediate past chair of the American Bar Association ART Committee, and as a popular presenter to law schools, faculty and advocacy organizations all over the world.

Elizabeth Tamayo

Elizabeth received her Bachelors of Science degree in Criminal Justice from California State University of Los Angeles. Shortly after graduating, she continued her education at the University of California, Los Angeles where she obtained her Paralegal certificate. Elizabeth is fluent in Spanish and has been in the legal field since 2009. She is excited to be a part of the IFLG Team helping families realize their dreams.

Sunny Chien

Sunny joined IFLG as a paralegal in 2017, where she manages surrogacy, egg donation and parental establishment cases for many of IFLG’s international clients. She holds a Bachelor of Arts degree in Philosophy from California State University of Los Angeles, where she graduated cum laude. Sunny is bilingual in English and Mandarin and has extensive experience as a legal assistant and paralegal at Los Angeles-area law firms. She is excited to be part of the IFLG team. In her spare time, Sunny enjoys spending time with her family and their dog, going to the beach, cooking, and being outdoors.

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Molly O'Brien

Fertility law attorney Molly O’Brien began working in the field of assisted reproduction technology (ART) in 2005, at an egg donation agency and a surrogacy agency where she became familiar with all aspects of in-vitro fertilization, egg donation and the financial aspects of surrogacy. Since becoming an attorney in 2011, Molly has drafted and negotiated surrogacy, egg donation, sperm donation embryo donation agreements for hundreds of her clients all over the world.