Surrogacy Gone Wrong–Who’s In Charge?

There’s a surrogacy story I’ve been meaning to get to.   Here’s one version.   It’s long and detailed, but worth taking the time to read.    It’s a painful story of  a surrogacy arrangement that went very far off the tracks.

Crystal Kelley agreed to be a surrogate.   It looks to me like she worked with an agency called Surrogacy International–more about the agency in a moment.   The agency paired her with a couple that already had three kids but also had a couple of frozen embryos leftover.

Kelley became pregnant with one of the frozen embryos but the fetus did not develop normally.   The intended parents (IPs–they are not named) wanted Kelley to abort the child but Kelley didn’t want to do that.   The IPs parents offered her extra money if she had an abortion, but she refused.  At that point (apparently) the intended parents threatened to sue her for breach of contract.

Eventually Kelley gave birth to the child.  Not in Connecticut, where she lived and (I think) where the contract was made, but in Michigan.   And why Michigan?   In Connecticut the IPs would have been the legal parents (at least, it seemed that way, and this is the case because of their genetic connection to the child.)    The IPS apparently planned to take custody of the child (something they’d be entitled to do as legal parents) and then surrender the child to the state (something they were allowed to do under a Baby Moses style law.)

By contrast, if the birth occurred in Michigan, Kelley would be the legal parent and could then give the child up for adoption.  This is last is what actually happened.    Now there’s complicated litigation over the surrogacy arrangement and who might have breached the agreement, whether money is owed, etc.

Now a lot has been written about this case because there is a lot to say.   Some of what I’ve seen seems slightly hysterical.   But there’s no question that the case raises a host of issues.   Some things are clear, however, and maybe it’s best to start with one of those, as the column I just linked to did:    The decision whether or not to abort a pregnancy always remains with the pregnant woman.  You can put all sorts of things in contracts, of course, but I don’t think those contracts are going to be enforceable.

And this really does lead me to what I think of as the heart of the matter:   The role of the surrogacy agency.   Look back at the start of the long CNN article and you can see that it is the agency that sets everything in motion.   And to my mind, it’s most important to hold the agency accountable in a case like this.

Everything I’ve read suggests to me that surrogacy can work IF (and I am tempted to make that in bold and italics as well as capitalized) there’s good screening and counselling.  The danger is that it may appear easier and less problematic than it actually is.  A woman who enjoys being pregnant, who has kids and wants to help others and who needs some money may think surrogacy is a fine idea.   And she may be right–but she may also be wrong.

What happened here is terrible to contemplate, but it was something that everyone should have anticipated before entering into the agreement because it was never beyond the realm of possibility.    I cannot help but wonder about what the process was by which the language that apparently was in the contract got there.   Who drafted it?  Who reviewed it with the surrogate?  With the intended parents?

It seems to me that the only entity in the picture who can ensure that this is all done properly is the agency–in this case Surrogacy International.   (I cannot find a website–but it’s owned by Rita Kron.)   But it’s not hard to imagine reasons why the agency might not be exactly vigilant here.  After all, my guess is that the agency (and its owner) are in it for profit.  No surrogacy deals, no profits.  This, it seems to me, is a structural failing of our system that makes cases like this inevitable.

I’ll stop here–off to class–but will try to pick up some of the other threads I see tomorrow.


18 responses to “Surrogacy Gone Wrong–Who’s In Charge?

  1. Unless the surrogate has not been compensated per the terms of her contract, I fail to see what problem has arisen. Thinking the abortion clause is enforceable is lunacy so that never should have been on anyone’s radar.

    The IPs were going to place the child for adoption but instead the surrogate did. Either way, the child has been placed for adoption.

    While the parties involved may have gotten their underwear in a bunch, I just don’t see how the end result is any different since both parties planned to place the baby for adoption. If there’s a dispute over compensation, the surrogate should be paid as she delivered a baby which was her ultimate responsibility under the contract.

    • But tyson she didnt deliver the baby to the ips, which is the definition of surrogacy after all. delivering the baby to someone else os most certainly not part of the contract. my feeling is that in michigan the contract should be void because the surrogate is considered the legal parent whereaa in ct the surrogate has breached the contract. but i still wonder why wasnt the genetic father recognized in michigan qith regard to obtaining his consent to the adoption? if that happened he really doesnt have much of a case against the surrogate. is he treated differently for having used art?

      • The IPs didn’t want the baby. They were going to place the baby for adoption.

        The father, according to the CNN story, did consent to the adoption.

        • If the IPs were definitely not going to keep the baby, I don’t really see what the surrogate did as being wrong, even if it wasn’t her genetic baby. This baby was going to be born medically fragile and really needed a permanent home and not foster care. The father did end up signing for the adoption like Tyson said.

    • It’s true that in the end the IPs and the surrogate all wanted to place the baby for adoption but this hardly means the process was successful. As I look at it, these were people who never should have entered into an agreement–because they didn’t really agree. The IPs would have chosen to abort a child rather than bring it into the world. The surrogate didn’t make the same choice. This is something any really good counsellor would have gotten them to think about. And it would have been made clear to the IPs that the surrogate couldn’t be compelled to do what they wanted. Thus, the IPs could have decided what to do knowing that they didn’t have the control they apparently thought they did.

      I’m not saying in the end it would have played out differently–we cannot know that. But it seems like failing to expose/explore these critical issues in advance is a pretty serious oversight–but of course, it might have threatened the deal.

      • I suspect the issue was discussed. Prior to actually getting pregnant, it’s easy to say, “Oh, yes, I’d have an abortion if there was a problem.” Heck, the surrogate momentarily agreed to an abortion for $15K.

        The parties can talk all they want to about abortion but they should enter into the situation knowing that the earlier conversations about abortion of simply FYI and completely moot because everything changes once there’s an actual baby at stake rather than a hypothetical one. Emotions come into play once there’s an actual baby.

        I see primarily a media driven exaggeration and exploitation of this story.

        • I haven’t seen anything that says whether the issue was discussed, but perhaps it is enough that we agree 1) it should have been but also 2) as you suggest, people may say one thing at one time and then change their minds or learn they feel differently than they expected. That’s true all around. And that’s something that ought to give anyone contemplating surrogacy–from any side–some pause. I don’t mean to say that for this reason we should bar surrogacy, but we should recognize the risks posed.

  2. I think I read the same CNN article, and it might be important to note that of the intended parents, only the father was genetically related to the fetus. They had used an egg donor in lieu of the biological father’s wife. Ah, why is nothing ever simple?

  3. I disagree that the agency can,ensure that everything can work out. an anti abortion woman may be desperate for money and agree to ant clauae, taking a gamble that it will all work out.

  4. The agency involved does not seem to have a good reputation. When I used Google to search the name of the agency and/or the owner’s name, there were many negative comments and warnings that predated this case. The surrogate claims her psychological evaluation consisted of a phone interview with the agency owner. That sounds like a recipe for disaster. From what I’ve read, I would place the largest share of blame on the agency.

    • I think this is often where problems originate. And in a way, the web makes this worse. If we still all went by word of mouth, you’d be a lot safer, but instead people run searches and you get what you get.

  5. Oh yes, I heard about this case on the news the other night.

    I’m strongly pro-choice and absolutely believe that the surrogate had the right to refuse an abortion. I also think that this should be one of the clearest conversations in a surrogacy agreement. Of course either party might have a change of heart, but beginning with IPs and a surrogate who have shared beliefs and are in agreement in terms of if/when a pregnancy would be terminated seems like it would be key to any good surrogacy agreement.

    • Right–this seems like one of the most critical issues you’d need to raise and discuss at the get go. Indeed, I bet if it is done properly, the discussion is had with the IPs and with the prospective surrogates before they are introduced to each other so they can think about how they feel for themselves. Then if they don’t agree you don’t even try to match them up.

  6. Hi Julie: Are you familiar with the 2001 case of the British surrogate, Helen Beasley, whose California IPs, attorneys Martha Berman and Charles Wheeler demanded she abort one twin and and sued her when she refused?

    Later, they demanded she abort both, after they realized the egg donor was slightly overweight, and the IPs did not want overweight children. IPs then attempted to sell the twins, in advance of the birth, for $80,000 Amazingly, they did not get in trouble for baby-selling, as they called it “selling the surrogacy agreement.” They didn’t want the children not only because they were twins, but because they learned that the egg donor was overweight and would pass on bad genes. The surrogate fled with the children to England and gave birth there, where surrogates are considered the legal mothers until they sign them over. A California judge extradited her back to California. Berman and Wheeler won the case and were granted full custody.

    Does anyone know what has happened since? Did Berman and Wheeler decide to raise their kids after all, or sell them?

  7. This sounds like a very strange case. I would be very interested in finding out more details?

  8. Hi Kisarita: If you Google the names involved, you’ll see a plethora of stories from 2001 about it. What’s missing, however, is what ultimately happened.

  9. All I can think of that is all the adoption cases that are contested where the mother leaves the state shutting out the father. Different but really the same at the end of the day…although I would bet that surrogacy laws get strengthened faster and in more states than laws protecting fathers in adoption…

    And another reason why both adoption and surrogacy laws need to be at the federal level…at least a set of minimum standards each state must reach and/or exceed…

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