SURROGATES RIGHTS

 

SAVIOR OR IGNORANCE?

 

It all began in August of 2011, when Crystal Kelley, who has two children of her own, began working with a surrogacy agency; she agreed to work with a couple who wanted but could not have a fourth child. She would be a gestational carrier, meaning she would have no genetic connection to the baby, but would carry a baby formed by a frozen embryo the couple had left from a previous round of in-vitro, and the father’s sperm. Her fee would be $22,000.


Just ten days later Crystal, then 29, conceived. But everyone’s happiness turned to anguish when a routine five-month ultrasound revealed many physical abnormalities, including a cleft palate and lip, a brain cyst and serious heart defects.

“Given the ultrasound findings, (the parents) feel that the interventions required to manage the baby’s medical problems are overwhelming for an infant and that it is a more humane option to consider pregnancy termination,” the fetal medical staff at Hartford Hospital wrote to Kelley’s midwife, according to CNN. The parents had already gone through three previous premature births that left two of their children with medical problems.

On February 22, 2012, six days after the fateful ultrasound, Kelley received another letter. The parents had hired a lawyer. "You are obligated to terminate this pregnancy immediately," wrote Douglas Fishman, an attorney in West Hartford, Connecticut. "You have squandered precious time." At this point she is put in a situation that stresses the value of Ethical and Logical behavior in such a manner many of us will never have to fathom in our lifetime. On March 5, Kelley would be 24 weeks pregnant, and after that, she couldn't legally abort the pregnancy, "TIMEIS OF THE ESSENCE," he added.  

Fishman reminded Kelley that she'd signed a contract, agreeing to "abortion in case of severe fetus abnormality." The contract did not define what constituted such an abnormality.

Kelley was in breach of contract, he wrote, and if she did not abort, the parents would sue her to get back the fees they'd already paid her, which was around $8,000, plus all of the medical expenses and legal fees. Speaking in general, he said everyone who enters into a surrogacy contact needs to be clear from the beginning about what they are willing and able to do.

“It’s very common to talk about this type of issue before there’s an actual pregnancy and is something that should be agreed upon at the outset, to make sure that philosophically and ethically, parents and the carrier are on the same page,” reproductive law attorney Victoria Ferrara told Yahoo Shine. “The same issue holds if there’s a triplet pregnancy. You need to have a carrier willing to carry a triplet pregnancy, because it could be risky.” On the other side, added Ferrara, author of “Gestational Surrogacy, A Primer,” and owner of Worldwide Surrogacy Specialists in Fairfield, CT, parents may want to make sure to find a carrier who would be willing to undergo selective reduction in the case of triplets.

In one particular case of hers, she explained, “the carrier had originally said she would reduce (abort one of the fetuises), but when it came time, she had a lot of qualms about it.” She finally agreed, after hearing from a doctor about how high-risk the pregnancy would be, but the case serves as an example of how a situation like this one could arise, Ferrara said.



Kelley disagreed and was “adamantly” opposed to aborting, touching off a legal battle that had each side going to great lengths to save the unborn baby in its own way; the parents, by wanting to “have mercy on the child and let her go,” and Kelley, by deciding to “carry and protect” the child until its birth. It was an unfortunate time for both sides to discover such a wide gap between their philosophical and ethical beliefs I would say.


Since Kelley would not agree to abort, she says the couple offered her $10,000 to reconsider. Kelley refused, and instead asked for $15,000; the couple would not pay that much, and Kelley said that she had changed her mind anyway. At the suggestion of Leslie Ciarlegio, a genetic counselor, the parents encouraged Kelly to terminate the pregnancy. The parents stated that their decision was based on humanity as they did not want their unborn child to suffer.

Kelly obtained a lawyer, finding Michael DePrimo, an anti-abortion First Amendment attorney with connections to the American Family Association who agreed to take on her case for free. The couple’s attorney reminded Kelley that her contract with them stipulated she would have an abortion in the case of “severe fetus abnormality.” But such an agreement is not legally binding, said Ferrara. “She still has the constitutional right that any woman has, to make decisions about her own body.”

Eventually, Kelley learned she and her children could relocate to Michigan, a state where the birth mother, and not the genetic parents, is considered the legal guardian. She chose this option, and gave birth to the baby there. Baby S was born with a grip of issues, including holoprosencephaly, which means the brain fails to completely divide into distinct hemispheres, and heterotaxy, which means many of her internal organs are in the wrong places. She also has a misshapen ear and many complex heart problems. Ultimately, though, Kelley, a single mother, realized she could not raise Baby "S" and wound up finding her adoptive parents who had experience with high-needs babies.

Baby "S" wakes up every single morning with an infectious smile. She greets her world with a constant sense of enthusiasm," the baby's adoptive mother said in an e-mail to CNN. "Ultimately, we hold onto a faith that in providing "S" with love, opportunity and encouragement, she will be the one to show us what is possible for her in her life and what she is capable of achieving."


 

But Kelley says she doesn’t regret what she did.

Ethical decisions are not always black and white, right vs. wrong, good vs. bad.When there's a lack of clarity then you start to have a recipe for problems. You would want to position yourself to not have to be addressing these kinds of issues for the first time when problems such as these emerge.

Kelley, meanwhile, still wrestles with her decision to not keep the baby. “I know logically I did what was right and I know that nobody in the world would dare think that I gave up on Baby S after all the fighting I did for her, but the battle in my head is bigger and stronger than I really know how to handle,” she wrote on her personal blog in February. “I feel myself slipping down that slippery slope, and I am fighting so hard to stay afloat. I just hope I find a foothold soon.” Also discussed in Kelly’s blog, the parents filed a court case against Kelly in Connecticut, where both parties resided at the time. “No one else was feeling this pregnancy the way that I was. No one else could feel her kicking and moving around inside,” she told the A.P. “I knew from the beginning that this little girl had an amazing fighting spirit, and whatever challenges were thrown at her, she would go at them with every ounce of spirit that she could possibly have.”

Ferrara told Shine she hopes that the public won’t “vilify the whole process of surrogacy” based on this one case. “Most often it just goes so beautifully,” the lawyer said, “and everyone understands the nature of the gift that’s been given and received.”

The couple that offered the surrogate $10,000 to abort their baby has exhausted all legal means to gain custody. They changed their mind and decided to pursue custody of their unborn child.


The baby is now 8 months old, living with adoptive parents, has had three surgeries with more to come, if she lives, little baby "S" faces a 50 percent chance she won’t be able to ever walk or talk.

Sources: Yahoo Shine, CNN, Huffington Post, A.P and Yours Truley... =)