Recently, many articles have surfaced across the web about the surrogacy scandal that took place in Connecticut (and later, Michigan).

The general gist of the story is as follows:

Surrogate mother, Crystal Kelley, was matched to a family through Rita Kron at Surrogacy International. Everything went well until she reached 20 weeks and the baby was diagnosed with certain abnormalities which would give it a 25% chance of surviving the birth. When the Intended Parents asked Ms. Kelley to abort the baby, she refused, despite having signed a contract agreeing to “abortion in case of severe fetus abnormality.” Everything spiraled downhill from this point.

Faced with a surrogate unwilling to honor their wishes (which were also reflected in the surrogacy agreement), the Intended Parents felt compelled to offer their surrogate an additional payment of $10,000 to entice her to give in to their demand. Ms. Kelley refused, but in the process made a counter offer of $15,000. By this point, both parties were only communicating via their lawyers. When the parents did not accept this counter-offer, Ms. Kelley was informed that the Intended Parents would not accept the baby as their own and she would have to raise it by herself.

Following the rejection of Ms. Kelley’s counter-offer, the Intended Parents reversed course and decided that they wanted to take initial custody of the baby so that they could then relinquish the child to the custody of the state of Connecticut.  “Connecticut’s Safe Haven Act for Newborns allows parents to turn over babies under one month of age over to the state without being brought up on child abandonment charges.” This tactic horrified Ms. Kelley, who again turned to her lawyer for guidance. Her attorney suggested that she relocate and deliver the child in a state where the gestational carrier (the surrogate mother) would be legally recognized as the mother with full parental rights. Ms. Kelley followed this advice,  packed up her family and moved to Michigan where she gave birth to the child (Baby ‘S’) and found an adoptive family for her. Parenthetically, the public record is silent as to whether Ms. Kelley breached the contract by intentionally relocating to Michigan to take advantage of more favorable laws. The Intended Parents did not fight for full custody but instead compromised and agreed upon visitation rights with the adoptive parents.

True to the initial prognosis, Baby S has numerous birth defects, so many that she will most likely not survive infancy. The adoptive parents have already paid for many operations and this will most likely continue for the rest of the child’s life.

It is easy to look at the actions of both Crystal Kelley and the Intended Parents of Baby S as reprehensible, but it would be perilous to try to pass judgment given the emotional issues involved and the scarcity of all the facts.  What is not in dispute is the role and history of the agency who has had a long history of criticism leveled against it.  When Ms. Kelley was matched with the Intended Parents, the contract that she signed should have been discussed at length. This discussion would have included the specific instances in which aborting the baby would be permitted, as well as an agreement between the parties as to how they would proceed under each specific scenario.  Beyond that, it is incredibly irresponsible to match Intended Parents with a surrogate who have differing beliefs or philosophy on abortion.  In this regard, we counsel all our clients to never select a surrogate that has a conflicting philosophy on termination, as the law is effectively powerless to enforce any contract provision mandating or prohibiting an abortion.

The agency, owned by Rita Kron, has had no comment.  Color us not surprised. Sadly, too many agencies so quickly match their clients to earn their fees that they often disregard fundamental religious and philosophical differences between the Intended Parents and Surrogate and hope for the best.  Kicking the can down the road is not a strategy.  It is reckless and irresponsible.

If nothing else, this tragic case is instructive of the need to work with reputable agencies and independent professionals.  Among other things, all parties should have been fully apprised by their attorneys of their obligations under the contract and ensured that there was a consensus on how they would proceed under every conceivable scenario, none more so than what to do with respect to termination of a pregnancy.