Canada’s most prominent surrogacy consultant Leia Picard, founder of Canadian Fertility Consultants, has weighed in on the high profile US surrogacy case. Ms. Picard stated, “I think this case clearly illustrates the need for clearly defined legal agreements being in place prior to the start of a pregnancy. I also believe that it is vital for everyone to be clear about expectations, and to put contingency plans in place, that deal with health issues of the baby during the pregnancy. This case also sheds light on the important role that fertility consultants play in the process, we co-ordinate building a team of fertility specialists to support both the intended parents, and the surrogate”.
A woman paid $22,000 to have a Connecticut couple's baby fled across the country and had the child after refusing their instructions to abort it when ultrasound scans revealed a series of disabilities.
Five months into the pregnancy last year, surrogate mother Crystal Kelley was told the bad news by doctors - beginning a tragic and heartbreaking ordeal for her and the baby's parents.
'She said, 'I want you to come to us with anything because you're going to be part of our lives forever,' said Kelley to CNN. In February though, everything changed when ultrasound tests began to show that the baby was not developing as was hoped.
Doctors suspected that the baby had a cleft lip and palate, a cyst in her brain and serious heart defects. They couldn't even see a stomach or a spleen. On February 16th, 2012, with the parents at the ultrasound with Crystal, their worst fears were confirmed. Physicians at Hartford Hospital said the baby would need several surgeries after birth and had only a 25 per cent chance of living a normal life.
After this bombshell news, a letter was sent to Crystal's midwife, in which Dr Elisa Gianferrari, a maternal fetal medicine specialist at Hartford Hospital, and Leslie Ciarleglio, a genetic counselor, outlined the parents' wishes. 'Given the ultrasound findings, (the parents) feel that the interventions required to manage (the baby's medical problems) are overwhelming for an infant, and that it is a more humane option to consider pregnancy termination,' they wrote according to CNN.
However, Crystal, who is staunchly religious, disagreed and said that 'all efforts should be made to give the baby a chance'. For the parents though, who had gone through three previous premature births that left two of their children with medical problems, the abortion was the most humane option. But the disagreement turned sour and developed into an emotional stand-off between the parents and Crystal.
'They said they didn't want to bring a baby into the world only for that child to suffer. ... They said I should try to be God-like and have mercy on the child and let her go,' said Crystal to CNN.
'I told them that they had chosen me to carry and protect this child, and that was exactly what I was going to do,' said Kelley. 'I told them it wasn't their decision to play God.' Unsure of their legal rights, the parents were stunned to discover that only Crystal could arrange and go through with an abortion. But the couple soon let Crystal's agency at Surrogacy International know that if she brought the pregnancy to term they wouldn't be the baby's legal parents - leaving the child to her. Crystal questioned whether she wanted to become a mother again, especially since the only income she could count on was the surrogacy fee and child support from her own daughters' father. Rita Kron from Surrogacy International explained to Crystal the realities of bringing up a disabled child and said the parents would pay her $10,000 to have the termination. Crystal refused - demanding $15,000 to have an abortion.
Claiming this was a moment of weakness, Crystal told CNN that she immediately regretted the counter-offer, which was totally refused by the parents. With the 24-week legal limit for a termination rapidly approaching, the desperate couple hired a lawyer. 'You are obligated to terminate this pregnancy immediately,' wrote Douglas Fishman, an attorney in West Hartford, Connecticut. 'You have squandered precious time.' He reminded her that she had signed a contract agreeing to 'abortion in case of severe fetus abnormality'. But the contract did not stipulate what this meant. However, the story took another turn when the parents changed their minds and said they would now exercise their legal rights to take custody of the child - but after the birth would surrender her to the state of Connecticut for foster care.
At this point, DePrimo explained to his client that the law was firmly on the parents' side. However, Crystal now decided that she couldn't stand the thought of the baby in foster care. Running out of options, Crystal was advised that she could go to a state where the birth-mother, and not the genetic parents, would be considered the legal guardian. So, on April 11th, in her seventh month of pregnancy, Crystal moved her daughters to Michigan and only as she was driving away told her attorney to inform the couple of her plans. 'Once I realized that I was going to be the only person really fighting for her, that Mama bear instinct kicked in, and there was no way I was giving up without a fight,' said Kelley to CNN.
Choosing Michigan to have the baby was also a medical decision too - C.S. Mott Children's Hospital at the University of Michigan has one of the best pediatric heart programs in the country. Once firmly established in a small, cheap, sub-let in Ann Arbor, Crystal came to another realization - she could not keep the child, but she would give the child up for adoption in Michigan. Locating a couple who wanted to take on a special needs child, Crystal prepared to come to term and hand the child over.
Three weeks passed until both sides came to an understanding - the father gave up his paternal rights so long as he and his wife could keep in touch with the Michigan adoptive parents. In the seven months since, the couple have visited the child known as Baby S and held her in their arms. 'They do care about her well-being. They do care about how she's doing,' the unnamed adoptive mother said to CNN.
But the child's medical problems have become far more serious than the ultrasound back in Connecticut first revealed.
The seven-month-old child has a birth defect called holoprosencephaly, where the brain doesn't completely divide into distinct hemispheres. She also has a condition called heterotaxy, which means many of her internal organs, such as her liver and stomach, are in the wrong places in her body.
As far as Crystal is concerned though, she did the right thing, even though some people have sent her hate messages through her blog, Surrogate Insanity. 'I can't tell you how many people told me that I was bad, that I was wrong, that I should go have an abortion, that I would be damned to hell,' she said.
'No matter what anybody told me, I became her mother.'
