Friday, March 8, 2013

Surrogate Abortion Case Raises Concerns About Enforceability of Surrogacy Contracts

A recent and tragic fight between concerned biological parents and a protective surrogate mother made national headlines after it was discovered that the child had serious health defects. The couple wanted their surrogate to have an abortion; a plan she initially agreed to but then had a change of heart. The surrogate then decided to flee to a different state that did not acknowledge surrogacy contracts so that she could have the child and put it up for adoption. The parents then launched a suit to get control of their child. A complicated and emotionally exhausting custody fight that touches on important concerns for those with fertility problems.

The case began when the couple was introduced to Crystal Kelley. Kelley needed money and was happy to have a child for the couple who were looking for their fourth after the wife had fertility problems. Though things started well, it was quickly discovered that the baby Kelley was carrying had severe disabilities. Doctors said the baby would be born with a cleft palate, brain development problems and serious heart defects. Multiple surgeries would be required and even then, the child was given only a 25 percent chance of leading a normal life.

The worried couple, who had already raised several premature children, decided to offer Kelley $10,000 to abort the baby and spare it from a life of pain. The woman initially agreed to do it for $15,000 but when the couple balked, changed her mind entirely and said her religion would not allow her to go through with it. The couple then sued to enforce the original surrogacy contract.

The original agreement specifically stated that the woman would agree to an abortion if the fetus had a severe abnormality, something Kelley later decided not to follow through with. Rather than stay and lose the inevitable case, she picked up and moved to Michigan where surrogacy contracts are not considered valid.

The surrogate eventually gave birth to the girl who suffered from even worse problems than were feared. Severe physical and brain deformities were present as well as serious developmental abnormalities. Kelley located a woman who was willing to adopt the child but still had the couple’s custody suit to contend with.

Several weeks after the birth, the couple relented to the adoption and agreed to give up their rights if they were allowed to maintain some kind of contact with the girl. The good news is that the young girl is now alive and living with her new adopted mother. The biological parents have visited the girl several times, despite the devastating custody battle.

Though this represents one family’s tragic struggle, it also sheds light on larger issues about what can happen when a surrogacy situation goes awry. As more and more couples suffer fertility issues and consider nontraditional ways of having a family, the case shows how much couples need to plan ahead and attempt to plan for a host of unknowns.

If you find yourself facing the prospect of complicated divorce and have questions about your rights and options, contact an experienced Ohio family law attorney who can help guide you through the difficult process. Count on the expertise of Twinsburg family law attorney Carol L. Stephan.

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