This entire story about a surrogate mother, Chrystal Kelley, pregnant with a fetus with severe abnormalities, is disturbing and heartbreaking. A low-income woman, desperate for money, agreed to be a surrogate for a wealthier family, something she had done before. Everyone was excited. Then, an ultrasound showed the fetus had several abnormalities — heart problems, organ problems. The parents, who had given birth to two premature babies before and knew the difficulties of raising children with health issues, wanted to terminate the pregnancy. Kelley did not.
The parents offered her $10,000 to terminate; she requested $15,000 but then says she changed her mind. The surrogacy office informed the surrogate that the biological parents would sever their parental rights if she gave birth, and she would be in charge of raising a child she couldn’t afford. Lawyers got involved, and demanded she terminate. She had signed a contract agreeing that the pregnancy would be terminated in the case of severe fetal abnormalities; by continuing the pregnancy, she was breaking that contract. Kelley then hired a lawyer for herself, who told the bio parents that she would not get an abortion under any circumstances. The bio parents responded that they would take custody of the child upon birth, but then immediately surrender her to the state, which under Connecticut law they had a right to do. Kelley’s lawyer advised her that Michigan law was different — in that state, the woman carrying the baby is the legal parent, not the people who provided the biological material for the pregnancy. So Kelley moved to Michigan. She didn’t want to raise the baby herself, but she found a woman online who said she would adopt the child. Then the biological parents petitioned for parental rights in Connecticut — except, as it turns out, they used an egg donor, so the supposed bio mother wasn’t actually the bio mother.
The baby was born with severe health complications; she’s had major surgeries and will have to have more. She may not live for very long. Kelley’s name is on the birth certificate. The biological-ish parents are involved, but the baby is being raised by an adoptive family in Michigan.
The whole thing sounds like a mess. But it opens up interesting questions about surrogacy. I’m pretty firmly in the camp of “no one gets to make you undergo a medical procedure without your consent.” And from what I remember about contract law, I think it’s pretty clear that there’s no way the bio parents could have compelled Kelley to have an abortion, even if she contracted for it. They could, however, get their money back. And while I have the knee-jerk reaction that it’s abhorrent to try to legally compel someone to have an abortion, I can also understand from the parents’ perspective that they were already raising one special needs child and both could not fathom raising another one and also thought it would be more ethical to terminate the pregnancy than to put a baby through extensive medical interventions.
And the money issue complicates things. If the situation is reversed — the pregnant surrogate decides midway through the pregnancy that she wants to terminate, let’s say because the pregnancy is causing health issues for her — it seems obvious that the surrogate should be able to terminate, but that (a) she may have a financial incentive to put her health at risk, and (b) the biological parents may be able to get some of their money back. The whole set-up is rife with ethical and moral problems. Yes, surrogates have agency and if what they want to do with their bodies is provide a uterus to host a pregnancy, great. Introducing money into it gets complicated — on the one hand, it does seem fair to compensate a woman for the time, effort and health complications that come with pregnancy. On the other hand, money creates certain incentives and power differentials which are particularly fraught when we’re talking about the physical body and reproduction, which is quite different from most other forms of labor. Surrogacy is a service, but it’s not just a service; it’s your body and your organs. There are not totally clear moral, ethical and legal lines. And as surrogacy gets even more common, we’ll be seeing more cases where there are no perfect answers.
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