CNN recently discussed a tragic case involving a fight between biological parents who discovered the child their surrogate was carrying would have a serious health defect and the woman carrying the child. The couple wanted the woman to have an abortion, something the surrogate fought, saying she felt protective over the baby. So protective in fact that she fled to another state that does not recognize surrogacy laws and found an adoptive mother to raise the handicapped child. The parents, who, it turns out, used an egg donor and thus are not both biologically related to the child, filed suit to claim legal rights to the child.
This convoluted tale is not a law school hypothetical, but the real case involving a woman named Crystal Kelley from Connecticut. The case began when a Connecticut couple who already had three children of their own decided they wanted a fourth but discovered the wife would not be able to carry the child. They then selected Kelley as their surrogate and, after using an egg donor, implanted the embryo. Not long after that they learned that the fetus their surrogate was carrying had developmental disabilities. Doctors said the child had a cleft lip and palate, a brain cyst and heart defects. The baby would need to have multiple heart surgeries after birth and was given only a 25% chance of leading a normal life.
The couple, worried about the child’s ultimate quality of life after having several premature children of their own, offered to pay the woman $10,000 to abort the baby. The woman, who initially claimed the procedure went against her religious beliefs, later admitted to demanding $15,000, but since says that was only in a moment of weakness. The couple refused the additional amount and launched a protracted campaign to enforce the surrogacy contract.
The original agreement the surrogate signed said specifically that she would agree to an abortion if the fetus had a severe abnormality. The woman said that she did not want to follow the agreement when confronted with the reality of what she would have to do. She then chose to leave Connecticut for Michigan where state laws disregard surrogacy contacts and where she would be deemed the child’s legal guardian.
Since then Kelley has given birth to a child with even worse medical problems then were expected. The child’s internal organs are in the wrong places, some don’t function properly, her ear is misshapen, she has an abnormally small head and has a brain that failed to completely divide into two hemispheres.
Several weeks after the child’s birth the couple reached an agreement with Kelley and agreed to give up their parental rights as long as they could maintain a relationship with the child. Kelley then handed the child over to the adoptive mother. The child is now alive and living in Michigan with her new family. She has multiple medical complications and has met her biological parents on at least one occasion.
The case is about more than what would happen to this particular child, but about who has the right to choose what happens to a surrogate child and even larger issues of life, death and abortion. As more and more couples turn to surrogacy to solve fertility issues, the case is important because it makes people confront the issue of what should happen if all three parties are not on the same page.
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