In Connecticut, A Surrogate Mother Triggers An Epic Ethics Train Wreck

Crystal Kelley and...somebody's baby

Crystal Kelley and…somebody’s baby

There is no field of ethics more murky or subject to conflicting interpretations than bioethics, and few issues in bioethics are as confusing as those involving surrogate mothers who decide that they should have some say regarding the fate of the child that grows in their bodies. CNN has reported on the most perplexing such scenario I’ve every encountered, so perplexing that I can’t unravel the ethical rights and wrongs of it.  I wonder if anyone can with confidence. I’ll just summarize the main features and some of the issues raised; you will need to read the whole, stunning story to fully appreciate this train wreck’s sweep and carnage.

I. Crystal Kelley, a single mother who had endured two miscarriages, wanted to help another couple conceive, but mostly wanted the $22,000 fee since she was out of a job. She contracted with a couple seeking their fourth child, and was implanted with two previously frozen embryos. One survived. Ethics issue: Did Kelley tell the parents about her miscarriages?

2. Five months into her pregnancy, tests showed the baby Kelley was carrying had serious medical problems, though the child had a chance at survival. The couple said that they wanted Kelley’s pregnancy terminated because they didn’t want the baby to suffer. Ethics issues: Is that a valid reason to take an unborn child’s life? Was it the real reason? Was the real reason that they were unwilling to pay for and endure all the necessary medical treatmenst, or that they wanted nothing less than a “perfect” baby? Does it matter what the real reason was?

3. Kelley refused to consent to an abortion. Ethics issues: Was it fair of her to do so, since she had no interest in raising the child? Which mother has the “right to choose”? Legally, Kelley could not be compelled to have an abortion. Was she heroic to take a stand asserting that the child “deserved a chance” to live, or cruel to subject the child to suffering, as the child’s biological parents argued?

4. The couple offered her $10,000 to agree to the abortion. Ethics Issues: Is this attempted corruption, since Kelley’s reasons for refusing were ethical, not financial? Is paying someone to have an abortion when that individual regards the unborn as a human life the equivalent of hiring a hit man?

5. The couple also threatened to refuse to accept parentage of the baby if it was born. Ethical issue: Whether or not that is legal, is it ethical to reject the child they are responsible for creating?

6. Now worrying about her financial situation, Kelley made a counter offer of $15,000 to abort the baby, then immediately decided she wouldn’t accept that deal. (She says now.) The couple rejected her counter-offer anyway.  Ethics issues: Was this attempted extortion? Could the parents claim it was extortion if they were the ones who first offered a cash for abortion deal? Did Kelley’s offer permanently forfeit any moral high ground she may have had?

7. The couple hired Douglas Fishman, an attorney in West Hartford, Connecticut, to threaten Kelley. He wrote, “You are obligated to terminate this pregnancy immediately. You have squandered precious time.” Fishman reminded Kelley that her surrogacy contract obligated her to agree to an “abortion in case of severe fetus abnormality.” But the contract did not define what constituted such an abnormality, or who would define it as such. If she did not abort, Fishman said, the parents would sue her to get back the fees they’d already paid her — around $8,000 — plus all of the medical expenses and legal fees. Ethics issues: Is threatening a woman into aborting her child ethical? Is that provision in the contract enforceable? If it isn’t, is it ethical for a lawyer to represent otherwise? If he thinks it isn’t enforceable, should he be citing it at all? [Aside: Talk about Bizarro World ethics! The parents contracted to have Kelley give them a baby, and now they were threatening dire consequences if  she did what they originally wanted.]

8. Next the couple, though Fishman, announced that they would take the child, and then give it up to the state. Under Connecticut’s Safe Haven Act for Newborns, parents can voluntarily give up custody of a baby less than a month old without being arrested for child abandonment. Ethics issue: If parents are able to care for a child, is it ever ethical for them to abandon their child to institutionalization because it isn’t perfect enough for them? If this is just a threat to persuade the surrogate mother to abort, is using a life, even an unborn life, as a bargaining chip inherently unethical? Are not the parents hypocrites, claiming that they wanted the child to be spared suffering, but being prepared to condemn their offspring, out of sight and out of mind, to the miseries of foster care?

9.  Kelley was told by her attorney that she couldn’t fight this tactic in Connecticut, where the natural parents, not the surrogate, have the legal rights to raise the child of a surrogate, or abandon it. Kelley decided to move to Michigan, one  of the states that refuse to recognize or enforce surrogacy contracts, and so hold that a baby legally belongs to the woman who gives birth to it. Ethics issue: If we are going to allow these inherently messy surrogate arrangements, aren’t national lawmakers obligated to prevent this kind of maneuvering by passing a single national standard?

10.  She moved to Michigan, had her baby, and found a couple there willing to adopt it. Then she heard from the original couple, who were undertaking legal action to be declared the legal parents of record. Ethics issue: Was this just vindictive?

There is more, believe it or not, but this is sufficient to melt my brain, and probably yours as well. Kelley has blogged about her experience, here. There is as happy an ending to this train wreck as such a disaster could be fairly expected to produce. So far, the original parents haven’t sued Kelley. Her baby is alive, even more beset with health problems than was originally predicted, and in the care of loving adoptive parents. The original parents have taken an interest in the child.

I tend to think that Crystal Kelley is the closest thing we have to a hero in all of this, because I think that choosing life is a more ethical decision than designating a helpless being for extermination on the presumption that he or she wouldn’t want to live. Still, Kelley chose to be a surrogate, a role for which she was obviously emotionally and ethically unprepared.

Surrogacy arrangements are what I call “pre-unethical conditions,” situations so inherently rife with possible ethical problems and dilemmas that they ought to be undertaken only as a last resort, and only when all contingencies have been considered. Perhaps the best ethics lesson that can be derived from this ordeal is that some conflicts reach such a point of ethical convolution that the objective should just be to end it as quickly and with as little harm and damage as possible.

By that standard, perhaps Kelley did all right.

___________________________

Facts and Graphic: CNN

20 thoughts on “In Connecticut, A Surrogate Mother Triggers An Epic Ethics Train Wreck

    • Two good things…Kelly found out she IS able to carry a child to term (some experiment!)….and that she truly (not theoretically) can’t go through with abortion. I doubt she ever signs another contract with that provision. Thank god for the adoptive parents. They are the only heros here IMO. And a truly unethical player in this is the Dr who did the implant…he/she should have had access to both obstetrical histories involved. No talk of suing the Dr.?
      I’m surprised.

  1. What strikes me is how little Kelley was paid to be a surrogate. $22,000. That is nothing! I can’t believe how badly she was treated by the parents who had contracted with her to have their child.

    This is nothing like what we usually hear in the press. What we usually hear of is a happy celebrity couple, with their new baby, which was (mentioned in very small print), born through a surrogate. The surrogate is rarely if ever named. It is as if she is faceless; she has no identity. But we are led to believe that the surrogate is highly paid, but at the same time basically acting out of altruism.

    If “everyone” is OK with surrogacy, then why is there such secrecy around it? Why isn’t there more information about how these women are actually treated? Why don’t we learn who they are and what they went through?

    I feel that surrogacy, as is currently allowed under the law, is inherently unethical. The contracting parents have all the rights; the surrogate has none. I can’t believe I am the only person in America who feels this way.

    • Actually, $22,000 is a lot of money to some people. Remember, the median household income is only double that. My wife works full time in hospice and she doesn’t make $22,000/year. She barely made that much working as an EMT and that was with overtime. There aren’t many jobs over $11/hour in most of this country. You would need a full-time job making over $13/hour to make more than this. You also need to realize that there are some women who actually like being pregnant (yes, I was skeptical too until I met a few).

      • Totally agree. Also, she can continue to work through her pregnancy the same as any other pregnant woman, so this isn’t about accepting only $22,000 for a nine-month period, it’s $22,000 EXTRA dollars for a nine-month period. That would have nearly doubled my income most years. And I’m one of those women who enjoy being pregnant; if I thought I could handle giving up a child I’d carried I’d do it myself.

  2. She carried the child and should have last vote on abortion. The adoptive parents also rank here, and I hope the genetic parent don’t threaten that now.

  3. Perhaps if the state’s law said a baby legally belongs to the woman who gives birth to it, and the couple who donated the egg had the first right to adopt if the mother decided she did not want to keep the baby then the ethics would be a lot easier to sort out.

  4. Thanking the Lord for “missed opportunities:” I guess it could have been even more of mess, if the couple had adopted a teenage daughter and persuaded her to be the surrogate…oh, wait. That’ll be tomorrow’s news.

  5. For a long time in the narrative, I was lost as to who was more unethical. The move to Michigan (when she was short on money to begin with) and finding adoptive parents made clear Ms. Kelly’s motives. What a complete mess.

    Lawmakers from every state need to read this to learn what the terrible possibilities are in the current landscape. Contracts that require people to have an abortion, contracts that only certain states will enforce, the fact that these contracts deal with children and who will have the legal right to be their parents, this should scare them silly.

  6. They are all horrible people. If the woman gives birth, the child should be placed with another family, and the 3 kids of the couple should be placed in other homes as well. The three “adults” (and I use that word in only the loosest of possible ways) should be removed from society, so as to prevent their world-views and ethics from being spread to any unsuspecting person they might encounter. Lock them in a tower, tended only by deaf-mutes.

  7. When Kelley signed the contract she acknowledged the possibility of aborting the fetus. Isn’t it safe to infer that by agreeing to this–abortion is within Kelley’s moral realm of ethics. Therefore by breaking the contract on this key item, she is violating her own ethics code. We have the ethics of terms that are agreed to, and then it seems we have unspoken ethics (when Kelley decided that she would not abort despite agreeing to said conditions). Why do those unspoken ethics trump the agreed to ones? Especially when there are so many lifelong implications for all parties involved?

    In the case of surrogacy within the U.S., I think the contract should be binding. I’m a firm believer in women’s rights to their own bodies, but I also believe that when you legally use your body as a means of income you have some responsibilities to the parties using your services. As an example: If a legal prostitute in Nevada had contracted HIV, been aware of it, yet chose to have unprotected sex with her customers, would her customers have recourse? I think so. Not to mention that this child should not legally be hers. She would never have conceived without the genetic material of the parents.

    I want to add to the questionable ethics on the part of the parents as well. I see you did not mention that they had two previous children with defects. When two out of three biological children are born with defects, chances are good that you have some incompatible genes. Was it ethical for them to pursue a fourth child, where the genetic probability of defects was high? And was it ethical to pursue that desire yet maintain the abort clause when the likelihood of issues was high?

    So many issues with this case. None of the decisions or outcomes are particularly happy. And who’s to say that the adoptive parents have the best motivations? It’s a highly publicized case and they could well be feeling that they’re paving their road to Heaven vs. adopting a child because they well and truly want her in their lives.

    • The whole point of ethics is to keep learning and evaluating. Obviously, if she was theoretically accepting of abortion in the abstract, her position evolved once it was made concrete with a real life involved. This is not rare where abortion is concerned, nor is it unreasonable or hypocritical. Abortion is not a black and white issue for most people; it is along a very complex spectrum. Who knows what Kelley thought the standard of abnormality that would obligate an abortion, for example? If she envisioned aborting with a catastrophic, gross deformity with no chance of survival, and the parents were interpreting that provision broadly, that’s not Kelley’s fault. She had never been a surrogate before. This happens a lot: a surrogate thinks she’s just renting a womb, but becomes attached to the baby that’s attached to her. Nothing unethical about that, either. She decided that what she once thought was right, wasn’t—that’s not unethical on her part, it’s admirable.

      You think the contract should be binding—really? So Kelley should have been retained and her baby ripped out of her body? So much for “reproductive freedom.” In bioethics, life trumps contract. And should. She may owe the parents damages for breach. That’s not an ethical issue, its a legal one.

      I didn’t know that the parents had children with defects: I knew they had previous miscarriages. If they didn’t tell Kelley the former, then her agreement was undertaken without full disclosure, and that was unethical on their part. Was it ethical to try to have another child? Why wouldn’t it be? But it is unethical to try to have another child with a high likelihood of a defect and not be ready to to keep and care for it. Thanks for pointing up this issue though—as I said in the post, there were more ethical issues than the ones I flagged.

      As for the adoptive parents, their deeper motivations matter not. They are caring for a child, and sacrificing greatly to do so. That’s admirable conduct, no matter how they came to do it.

  8. This whole situation reminds me of the “Silver Linings Playbook.” Twenty minutes into that movie, I was hoping an asteroid would strike Philadelphia and kill them all.

    People like this toss aside propriety and taboo, strike an attitude of “L’Etat, c’est moi!,” and set out to go it alone, without ethical or moral concerns– because they ARE the Law. And they are very pleased with themselves indeed– so long as they get WHAT they want, WHEN, and JUST AS they want it. But just let something go wrong. . . .

    Suddenly it’s Society’s problem, the Court’s problem, the Welfare System’s problem (I have a sneaking suspicion Medicaid will be footing the bill for this disabled/adopted child in the years to come). The Court should show these Bio-Parents the door if they ever do come calling. These geniuses made this mess, and they should be left to live with it.

    Of course, that is not what will happen. The Court will entertain the arguement and the Surrogate will lose contractually. Then she will receive a mountain of financial support from the Pro-Life front, and live happily after. What’s not to LOVE about a good Train Wreck?

  9. You’re right, this is an utter mess, though I can’t say I agree with you that Kelley’s the hero in this. If she’d stepped up to raise the child herself when the natural parents chose termination, I’d agree, but the fact is she didn’t want this child any more than they did. That contract sounds like a mess, even by surrogate standards. Obviously American law can’t require her to have an abortion, but the contract can nullify payment if she didn’t get one – what I really want to know if what moron thought the phrase “severe abnormalities” was sufficient. That’s something that’s gonna vary a lot – clearly Kelley thought it meant if the child was incapable of surviving, the parents thought it meant if the child would be severely disabled/in pain…. legal or not, this is something that needs to be hammered out before either party signs.

    As for the Michigan thing, that’s not just them or just surrogacy. Utah, for example, only requires one parent’s signature to put a baby up for adoption, so unethical agencies will coach women to travel to Utah to have the baby, then adopt it out before the dad even knows it was born. Legal in Utah, wildly illegal everywhere else. It’s a mess.

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