By Judith Daar
A recent news item about a gestational carrier who refused a $10,000 bribe from the intended parents to abort a fetus with severe abnormalities has stirred debate about the allocation of fundamental rights when reproduction is shared among multiple parties. Though surrogacy and abortion are rarely aligned, the pregnancy-inducing act of hiring a woman to carry a child to term collided with the pregnancy-ending medical procedure in Crystal Kelley, a single unemployed mother of two who agreed to accept $22,000 to help another couple struggling with infertility. All was well until an ultrasound at five months gestation revealed a fetus with severe medical problems.
Until that moment, as is true in the vast majority of surrogate parenting arrangements, all had gone smoothly between the intended parents – a married couple with three existing children – and the surrogate. But the medical revelations tore the parties apart. The couple asked Kelley to abort the fetus immediately, urgency flaring as the pregnancy bumped up against the legal limit for lawful termination in Connecticut where the parties resided. Kelley refused, saying she wanted to give the baby a fighting chance. Desperate, perhaps, the intended parents offered the surrogate a bribe to abort the fetus. She declined and soon thereafter a legal team was put in place, with both sides lawyering up.
This story may take its place in ART history as one of the (fortunately not too many, relatively speaking) surrogacy arrangements gone awry. To me, the tale (and its aftermath, stay tuned) is peppered with signposts that virtually any would-be reproductive collaborator could read and heed. Let me share at least five signs, ripped from the headlines, that your surrogacy arrangement has gone awry.
1. Your Surrogate Parenting Contract Contains an Abortion Clause
Like many surrogacy contracts, this agreement contained a provision stipulating the surrogate would terminate the pregnancy, at the intended parents’ request, if the baby had “severe fetal abnormalities.” The issues surrounding the enforceability and constitutionality of surrogacy abortion clauses has been elegantly discussed, so I’ll simply point out what I consider to be the basics.
From its inception in Roe v. Wade, the right to avoid procreation via abortion is understood as an individual right, inuring to protect “the interests of a woman in giving of her physical…self during pregnancy” 410 U.S. 113, 170 (1973). The individualized right is reimagined in scope in Planned Parenthood v. Casey, but its link to the physicality of pregnancy remains unchanged. As Justice O’Connor explains, “The mother who carries a child to full term is subject to anxieties, to physical constraints, to pain that only she must bear.” 505 U.S. 833, 852 (1992).
It is the burden of pregnancy and not the burden of parenthood that lies at the heart of the abortion right. This right is inalienable in the sense it can’t be waived or transferred by commercial agreement. So while the intended parents may argue that their negotiated right to avoid procreation is being infringed, they have no such right once the embryos attaches to the surrogate’s uterus.
2. The Intended Parents’ Lawyer Tells the Surrogate She Must Abort
According to one report, the couple’s lawyer informed the surrogate that she was “obligated to terminate this pregnancy immediately.” The contract may have so provided, but enforceability of such a provision is highly suspect. While lawyers continue to insert abortion clauses in surrogacy contracts, surely they understand a remedy for breach, if any, would rest in money damages rather than specific performance. Frankly, the day I see a judge order a surrogate to have or refrain from having an abortion is the day I will start to worry about the future of surrogate parenting arrangements. While surrogacy reallocates the norms of natural conception, it remains faithful to rights that are uniquely situated in a pregnant woman.
3. Your Surrogate Flees the Jurisdiction to Live in a State that Punishes Surrogacy as a Felony
After the surrogate refused the bribe, the intended parents relented and agreed to accept responsibility for the child upon birth – and promptly surrender custody without legal penalty under the Safe Haven Act for Newborns Act. Fearful the child would end up in foster care, the surrogate fled from Connecticut to Michigan, a state that criminalizes surrogacy, making it a felony to enter into a surrogate parenting contract. Ironically, the surrogate reportedly decided to land in Michigan because its laws favored her as a legal mother. Not necessarily. The law does permit a judge to award parentage in a contested surrogacy case based on the best interests of the child, so her status as a legal mother was uncertain. Perhaps the surrogate was gambling that a judge would favor an absconding pregnant woman over the couple who preferred the child aborted or left at a local fire station.
4. Your Surrogate Begins to Shop Around for Adoptive Parents
Shortly after arriving in Michigan, the surrogate realized she couldn’t care for a special needs child and began searching for an adoptive family. The problem? At that point she had no legal authority to consent to the child’s adoption. In fact, the laws in Connecticut, which presumably apply, favor the intended parents even if one or both did not provide the gametes for the child (allegedly the couple used an egg donor). In Raftopol v. Ramey, 299 Conn. 681, 12 A.3d 783 (2011), the Connecticut Supreme Court held the state’s statutory law “allows an intended parent who is a party to a valid gestational surrogacy agreement to become a parent without first adopting the children.” Assuming the contract was valid, the commissioning couple would be named the legal parents even if did not wish to rear the child.
5. Your Surrogate Contacts the News Media to Share Her Story
In the end the child was adopted, with the father’s consent (why not the mother also? see 4 above), by a couple with special needs children of their own. I’ll leave to the reader’s judgment whether airing this dispute served anyone’s best interest – other than the myriad news organizations and blogs that have given it play. I suppose while the legal concepts are straightforward and well-worn, it is worth reminding ourselves that these familiar principles prove their durability and usefulness when they enable us to address new problems with a certain degree of confidence. Moreover, every surrogacy gone awry can teach us a thing – or five – to beware of in the future.