By now, many people have heard about Crystal Kelly, the Surrogate who refused to terminate the pregnancy she was carrying after it was discovered that the fetus she was carrying had severe health problems including, serious heart and brain defects. Medical professionals involved in the case strongly advocated that the pregnancy should be ended but Kelly refused. The Intended Parents, who felt strongly that they did not want the child to needlessly suffer, offered to pay the Kelly $10,000 to terminate the pregnancy, something she was obligated to do under the terms of the contract she signed before she underwent medical procedures to become pregnant. Kelly countered that she might be inclined to terminate the pregnancy for $15,000 before fleeing to Michigan. The child was subsequently born, with severe medical defects, and put up for adoption by Kelly.
It is not surprising that commentators have seized on this situation as illustrating “America’s messed-up moral views on abortion, parenting and personal freedom.” Others state that “[i]t is intolerable that our society continues to put up with an unregulated, free market in hiring cash-starved women to make babies.”
This is an exceedingly complex case that highlights many of the ethical and moral issues that assisted reproduction professionals repeatedly grapple with. Contrary to the pundits who have blithely pronounced the case as highlighting the evils of surrogacy, this case demonstrates the need for careful screening procedures to ensure that surrogates and parents are ethically aligned before going forward. This is why reputable agencies use licensed mental health practitioners to screen and match potential surrogates and parents – unfortunately, there is little information about what additional screening procedures, if any, were used by the agency that matched Kelly with the Intended Parents.
The case had led some to call for for laws requiring that surrogates have their own lawyers, a suggestion that readers of this blog will have long noted is the law in California after a vigorous lobbying campaign by members of the assisted reproduction community here. In the end, too little is known about what safeguards, if any, were used to match Kelly with the parents to warrant the across the board denunciations of surrogacy that have blithely appeared across the Internet.
The Kelley surrogacy case underscores the need to work with a reputable surrogacy agency that carefully screens all parties before coordinating a surrogacy arrangement. Finally, this case again there is a demonstrable need for increased regulation, at the state and federal levels, to ensure that the significant safeguards enacted in California are available across the country.
We invite anyone who is interested in surrogacy, but concerned how stories like these might impact them, to contact us or any attorney experienced in this very specialized area of the law.
