What are a Surrogate's Rights? Woman's Controversial Pregnancy in Spotlight

Crystal Kelley and baby S (Photo by CNN)

Crystal Kelley, a surrogate who entered into an agreement to have a Connecticut couple’s baby for them last year, found herself embroiled in a bitter battle when an ultrasound found fetal abnormalities, and the couple asked her to have an abortion, a CNN report revealed this week.

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Kelley refused to abort, 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.

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After a many-months-long ordeal that involved lawyers, monetary offers, and Kelley’s move from Connecticut to Michigan, where state laws would see her as the rightful mother, “Baby S” was born—with even more health problems than expected. The baby is now 8 months old, living with adoptive parents, has had three surgeries with more to come, and, if she lives, faces a 50 percent chance she won’t be able to ever walk or talk.

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

“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 CNN. “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.”

It all began in August of 2011, when Crystal, 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 angst 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,” members of 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.

But Kelley, they added, disagreed, and was “adamantly” opposed to aborting.

It was an unfortunate time for both sides to discover such a wide chasm between their philosophical and ethical beliefs, according to at least one surrogacy expert.

“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, 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.

When Kelley would not agree to abort, according to CNN, she says the couple offered her $10,000 to reconsider. Kelley refused, instead asking for $15,000; the couple would not pay that much, and Kelley said she had changed her mind anyway.

Each side retained a lawyer, Kelley finding Michael DePrimo of Hamden, 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, Ferrara told Shine. “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 panoply 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.

"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, encouragement, she will be the one to show us what is possible for her life and what she is capable of achieving."

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.”

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.”

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