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Child Custody Rights Could Face Major Legal Test in California Surrogacy Case

Child custody rights in New Jersey and elsewhere across the U.S. could soon be affected by a critically important case in California. Melissa Cook, a 47-year-old woman in California, is currently in the process of challenging a state law that denies her custody rights over her unborn children because she signed a surrogacy contract. Cook and her lawyers are claiming that the restrictive CA state law is actually a violation of the U.S. Constitution because it unfairly limits her due process rights and her equal protection rights.

Right now Cook is carrying three children for a Georgia man who hired her to serve as a surrogate mother. However, the father only contracted with Cook to carry two children; since she ended up with triplets, the father is demanding that she abort one of the unborn children. When Cook told the father that she wanted to give birth to all three children and keep the third child, the father responded by threatening to sue her for violating the terms of their surrogacy agreement. The contract includes language that reportedly calls for Cook to pay heavy monetary penalties if she refuses to abort one of the fetuses.

Rather than accede to the father’s demands, Cook is fighting back in California Superior Court. If Cook is successful in her lawsuit, the legality of surrogacy arrangements in states across the nation could come into question – particularly since Cook’s legal argument invokes the U.S. Constitution. In New Jersey and New York, commercial surrogacy contracts are already banned, with the birth mother being granted a presumption of custody in most cases.

Cook and her lawyers have argued that the state law violates her constitutional rights by prioritizing the father’s custody rights and disregarding the mother’s custody rights. According to Cook’s legal brief, “children derive a special benefit from their relationship with their mother.” Since Cook wants to give birth to all three children and is prepared raise them herself, she believes she should be granted custody over them.

For additional information about the recent California surrogacy rights case, view the NY Post article entitled, “Surrogate Carrying Triplets Sues to Stop Forced Abortion.

If you are dealing with a child custody dispute, or any other divorce-related matter, you deserve to have a skilled family law attorney on your side. The successful family law and divorce lawyers at Graziano & Flynn, P.C. have decades of experience assisting people throughout New Jersey. Contact us today to schedule a free consultation about your case.

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