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US surrogacy dispute: surrogate refuses to abort at genetic parents' request

11 March 2013
Appeared in BioNews 696

A surrogate mother in the United States, who refused an abortion at the intended parents' request after a scan revealed abnormalities, has told CNN news that she was offered money to terminate the fetus and was threatened with legal action. The intended parents have negotiated access to the child, who now lives with adoptive parents.

The surrogate, Crystal Kelley, and the intended parents were all present when an ultrasound scan at five months' gestation revealed the fetus had a cleft lip and palate, a cyst in her brain and severe heart defects. Doctors later told them that if born, the child would require extensive surgery and had a 25 percent chance of a healthy life.

Later, a doctor and genetic counsellor at Hartford Hospital, Connecticut, wrote to Kelley's midwife stating that the intended parents, who were both believed to be the biological parents of the child, had expressed their wish for Kelley to undergo an abortion.

The letter said:  'Given the ultrasound findings, [the intended parents] feel that the interventions required to manage [the resulting child's medical problems] are overwhelming for an infant, and that it is a more humane option to consider pregnancy termination', reports CNN.

The intended parents, who had two previous children with medical problems, explained they opted to use a surrogate to 'minimise the risk of pain and suffering for their baby', the letter said.

Kelley, who was implanted with an embryo stored from the intended parents' previous IVF procedures, refused the request, however. The relationship between Kelley and the intended parents, who had been on good terms with frequent contact, then began to deteriorate.

A surrogacy agency reportedly wrote to Kelley informing her that if she decided to proceed with the pregnancy the intended couple would not agree to be the child's legal parents. CNN reports that an agent at the company told Kelley, who had agreed to a $22,000 surrogacy 'fee' to help with financial difficulties, that the parents would pay her $10,000 to have an abortion. After some negotiation Kelley ultimately rejected the offer.

CNN then reports that a lawyer hired by the intended parents wrote to Kelley explaining that she was 'obligated' to terminate the pregnancy. The lawyer, Douglas Fishman, told Kelley that she had signed a contract agreeing to terminate the fetus in the event of 'severe fetus abnormality' and that, if she refused, the intended parents would sue for breach of contract. Fishman declined to comment on the specifics to CNN, saying: 'The situation... is complicated. It's very complicated'.

A lawyer acting for Kelley, Michael DePrimo, said that while the intended parents could not legally compel her to have an abortion, they planned to put the child up for foster care as a ward of the state. As legal parents - under Connecticut law the genetic parents are considered the legal parents - the intended parents would seemingly be permitted to do so.

Before the birth, Kelley then moved to the state of Michigan - where the law does not recognise surrogacy contracts and considers the birth mother as a legal parent. While there, another couple agreed to adopt the child at Kelley's request.

The intended parents then filed a claim in the Connecticut Superior Court for parental rights. The claim, however, revealed that the intended mother was not the child's genetic mother and they had used an egg donor, further complicating the matter.

A deal was struck between the parties after the child was born, with Kelley's name on the birth certificate, and the intended father, who is the child's biological father, agreed to relinquish his rights to legal parenthood in return for access by the intended mother to keep in touch with the child's new adoptive family. CNN reports that the couple has since visited the baby.

'I think I did what was right for her. I gave her a chance that no one else was prepared to give her', Kelley told the Telegraph last week. 'I am proud I stood up for what I believe was right'.

CNN reports the child's medical problems turned out to be more serious than the ultrasound revealed. She was born with a brain defect, holoprosencephaly, and a condition that results in some of her internal organs developing in the opposite side of the body, heterotaxy syndrome. She has two spleens that do not function properly, heart defects and facial disfigurement. If the child survives extensive planned surgeries, doctors say there is a 50 percent chance she won't be able to walk or talk.

CNN says attempts at contacting the couple for comment were unsuccessful.

6 May 2014 - by Andrew Powell 
I've always been interested in the law related to surrogacy. Through the Pegasus Scholarship Scheme founded by the Inner Temple, I obtained a placement at a law firm in Los Angeles that specialised in surrogacy and fertility law. I was keen to see how commercial surrogacy operates within a regulated paradigm...
10 March 2014 - by Patricia Cassidy 
A 'do it yourself' surrogacy agreement resulted in legal chaos after the intended parents' relationship broke down within a few months of the baby's birth, leaving the intended mother with no parental rights over the child...
7 May 2013 - by Natalie Gamble 
The Human Fertilisation and Embryology Authority (HFEA) voted on 20 March 2013 to update the guidance it gives to UK fertility clinics on surrogacy. It is a welcome decision that will mean better support for the growing numbers of families created through surrogacy in the UK....
4 February 2013 - by James Brooks 
The French Justice Minister's instruction to courts to accept citizenship applications for children born via surrogates in other countries has unleashed a political and popular furore...
28 January 2013 - by Nina Chohan 
An Irish couple has brought a legal challenge against the State for refusing to remove the surrogate mother from their children's birth certificates and to register the genetic mother as a legal parent...
29 October 2012 - by Ruth Retassie 
The New Jersey Supreme Court has failed to reach a majority verdict on whether a law that requires women to adopt a child born through surrogacy arrangements using donated eggs, to be considered the child's legal mother, discriminates against women affected by infertility....
24 September 2012 - by Tom Barrow 
The High Court has awarded a lesbian couple sole custody rights for a child conceived using donor sperm and a surrogate's egg after a three-year battle over parenthood...
6 June 2012 - by Jessica Ware 
Around half of the 2,000 babies born to surrogate mothers in India last year may have gone to British parents, an investigation by the Sunday Telegraph has revealed....
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