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