When Surrogacy Goes Very, Very Wrong

Dawn Davenport

26

My first response when hearing this CNN story was “Oh, what an incredibly sad and complicated mess.” I’ve embedded a seven

When Surrogacy Goes Very, Very Wrong

When Surrogacy Goes Very, Very Wrong

minute video, but the crib note version is this. A couple hired a surrogate to carry their embryo (donor egg) because their other three children from IVF had been born premature, and they wanted to give this child the best option of a healthy gestation. The surrogate was a single mom of two children.

Intended Parent-Surrogate Standoff

Things went swimmingly until at 21 weeks an ultrasound showed severe birth defects, and doctors gave the baby a less than 25% chance at having a “normal life”. The birth defects included serious abnormalities of the heart, brain, and numerous internal organs. The parents felt “strongly that they pursued surrogacy in order to minimize the risk of pain and suffering for their baby” and that an abortion was the most “humane option”. The surrogate believed that “all efforts should be made to ‘give the baby a chance’ and adamantly opposed termination.” In short, they were at loggerheads.

At one point the parents offered the surrogate $10,000 to terminate the pregnancy, and the surrogate countered with $15,000, which the parents refused. The surrogate later said that she regretted the counteroffer and that she would not go through with the abortion for any fee. Both sides hired lawyers.

The Surrogate Fled the State

Although the parents could not force the surrogate to have an abortion, they said that they would relinquish the baby to the state after birth. The surrogate opposed this move, and since the state where all three parties lived did not recognize her as the mother, and did not give her the right to object to placement after birth, she fled to Michigan, where she would have the power to make this decision. After birth she placed the baby with an adoptive family. The biological parents have kept in touch with the child’s progress via the adoptive family. The baby’s birth defects were more involved than the ultrasound showed, but she is still alive at 8 months despite several surgeries and many more to come. “Oh my, what a sad sad mess.”

 

If this isn’t evidence of the need for a brutally honest conversation between intended parents, surrogate, and surrogacy agency before conception, I don’t know what is. The surrogacy agency should have realized that this surrogate was opposed to abortion even when the fetus had significant health issues. People do change their minds, but a good counselor should have been able to see some red flags. This is a totally acceptable position for a surrogate to have, but she should not be matched with intended parents who have different beliefs.

Who Wears the White Hat?

Is the surrogate a saint, or did she try to play God? Or was it the intended parents who were playing God? Who acted with the most compassion? Or are there no villains or heroes here other than a surrogacy agency who failed to do their job and one little girl with a fighting spirit and a generous and open-hearted adoptive family?

Image credit: CNN Health

05/03/2013 | by Dawn Davenport | Categories: Blog, Infertility, Infertility Blog | 26 Comments



26 Responses to When Surrogacy Goes Very, Very Wrong

  1. Kymberli aka JW Moxie says:

    I’m sorry that it has taken me so long to realize that you’ve asked some good questions here, Dawn. A quality surrogacy agency arranges independent legal representation for both the intended parents and the carrier. In ANY surrogacy arrangement — even those facilitated by an agency — the intended parents and surrogate should have separate legal counsel to represent them to avoid conflicts of interest during the contract drafting phase.

    There is too much unknown about the entire case — especially as it pertains to the contract — to determine the exact “rights and wrongs” of this situation. We do know that there was a clause which stated that the surrogate agreed to terminate if the parents requested it. What we DON’T know is what the contract said would be the result if the surrogate chose to act against the surrogate’s wishes. Generally speaking, most surrogacy contracts state something to the effect that if a surrogate agrees to terminate and chooses not to, then she would be considered in breach of contract, assume all parental responsibilities for the baby and her medical care, the IPs would be released from any further financial obligation to her, and she would have to repay any compensation that had already been given to her. We just don’t know enough about the specifics of Kelley’s contract as a whole to know how far her breech stretched.

    If the contract DID include further information which DID release the IPs from financial and parental responsibility after Kelley refused to terminate, then she was free to move to Michigan and the IPs had no further say in what happened to her or to the baby. Given the fact that they tried to retain their parental rights, however, it seems as though their contract DID NOT have a clause which released them of their parental rights once Kelley refused to terminate.

    It is also standard practice for contracts to include fees for pain and suffering for invasive procedures, especially for something as major as the termination would have been in this situation. $10K is a lot…average fee for a mid-pregnancy termination might normally be anywhere from $1-2K. We just don’t know A) what their contract said about it or B) what the IPs’ motive was for giving the $10K. I can’t pass any judgment on that $10K without knowing the IPs’ motive behind it. We do know that Kelley was in deep financial distress (which really should have made her a poor candidate to be a surrogate at this time). The IPs could have offered the money as a way to help her financially beyond the termination, especially because her surrogacy compensation was her ONLY income (and that should NEVER be the case with surrogates, ever). For all that we know, that $10K could have been more of a kindness and less of a bribe.

    Above all else, I am inclined to believe that neither Kelley nor the IPs did their due diligence research. I don’t know many people who would invest as much money, faith, and dependence on someone who has been under as much scrutiny as has Rita Kron. I truly wonder about the quality of the psychological consultations (or if there were any, in the first place) and about the quality of the contract and legal professionals they used for the drafting of the contract. Rita should have ensured that Kelley and the IPs had discussed this “what if” scenario right at the very beginning, and it should have been a determining factor as to whether or not they were a good match.

  2. Kymberli aka JW Moxie says:

    Thanks, Lori, for referring me here to read. This was an excellent read, Dawn. Yes, I think that the agency coordinator is mostly to blame for this. This is a match that never should have happened. I also assign responsibility to Crystal and the IPs, because it was up to them to make an informed decision about working with Rita in the first place. The whole thing is an unfortunate mess. The only redeeming factor is that this story went public AFTER the parties were able to bring it all to a mutually-accepted agreement.

    • Dawn says:

      Kym, thanks and I loved your site! Once an intended parent or surrogate chooses an agency, is it reasonable for them to assume that the agency is handling the legal issues, that the contract is drafted well, and that the appropriate screening is taking place? If so, it really seems that a great deal of care must be taken in choosing a surrogacy agency. Any tips for how to choose such an agency?

  3. Kym, a former surrogate, has written a thoughtful analysis of this situation, about angles that that also need to be considered.

    • Dawn says:

      I second Lori’s recommendation to read Kym’s blog on this topic. Turns out, according to Kym, the head of the surrogacy agency used in this case has a bad reputation in the surrogacy field.

  4. Dawn Davenport Dawn Davenport says:

    Catherine. if I’m understanding you correctly, you would encourage hiring a reproductive law attorney even if you are using a surrogacy agency. I can see this for the intended parents, but from a practical standpoint, is this added expense feasible for most surrogates?

  5. Dawn Davenport Dawn Davenport says:

    Catherine, I had wondered if the intended parents offer to pay the surrogate $10K was a way of paying off the rest of her surrogacy contract, which seems like a fair offer. This is my conjecture, since it was not stated in the news article.

  6. Catherine Tucker says:

    To the poster above, it is not the role of the matching agency to handle the legal issues or to make sure the contract is well written. That is the role of the attorneys. As you can see from this case, these issues can get quite complicated, so it is important to use attorneys who are well versed in this area of law.

  7. Catherine Tucker says:

    Typically, payments are structured per month of pregnancy, so if the pregnancy ends for whatever reason (termination, stillbirth, preterm delivery), payments also stop. But how exactly this is structured can vary from contract to contract.

  8. Dawn Davenport Dawn Davenport says:

    Debi, I think you’re right that at times something that sounds OK in the abstract, feels quite different when you are faced with it square on. I wonder what happens to the rest of the surrogacy contracted payment if the pregnancy is terminated. Any of our reproductive law attorneys out there know the answer to this?

  9. Justin says:

    Michelle, I’m sorry, but I cannot agree with you. A woman who agrees to act as a surrogate is exactly that – a surrogate, not a parent. She is not the one who will care for the baby after birth, she is not the one who initiated the conception, and thus she is not the one who should make a decision concerning the child. She is carrying another person’s baby, and all decisions concerning that baby should be done by the other person.
    I understand that there are some women who do not see abortion as a viable option, and those women, while perfectly entitled to their opinion, should not offer their services to couples who believe they might consider abortion during the pregnancy.
    In this particular case, the surrogate signed an agreement, in which she stated she is willing to undergo an abortion. She signed it of her own free will. The intended parents counted on her to fulfill her part of the agreement, just like they should fulfill their obligations (which they did).
    This is not a case of lack of informed consent, of lack of proper counseling. This is a case of a woman breaching one of the most important agreements a person can sign in their lifetime.
    I hope the parents and the agency will sue that surrogate for everything she has.

  10. Debi Engle Averett says:

    I can see where even if there had been a perfect understanding, an abortion could still be an issue. Sometimes things that sound alright in the abstract can feel differently in reality. Given that, as I understand the judge said, no woman can be forced to have an abortion, I would think a contract would have to deal with what happens when a surrogate mother chooses not to abort, even if at the time of the contract, she agrees to one. Such an agreement could have averted a situation like this.

  11. Debi Engle Averett says:

    So Kron gave her bad information? Otherwise it seems as if the parents chose not to abide by the contract either, if they did not want to relinquish their parental rights. I agree with you that this was a perfectly horrible fit.

  12. Dawn Davenport Dawn Davenport says:

    Debi, as I understand it, the intended parents at some point changes their minds and decided that if the pregnancy was not going to be terminated, they did not want to give up their parental rights; rather, they wanted to maintain decision making power and would have placed the child for adoption with the state. Crystal, the surrogate, did not want this, but in CT, she was not recognized as the parent and therefore had no legitimate grounds to object. That is why she moved to Michigan, which recognizes the pregnant woman as the mother regardless whether there was a surrogacy arrangement. In the video, it says that Crystal considered parenting, but was not financially or logistically set up to handle a child with extreme special needs. That is why she found another adoptive family.

  13. Debi Engle Averett Debi Engle Averett says:

    There was one comment in Kym’s post that confused me. She said, “Rita Kron, owner of Surrogacy International, continued to mediate and cautioned Crystal that if she chose not to abort, she (Crystal) would be responsible for making all parental decisions.” That sounds like Crystal had a clear out, that if she chose not to abort, she was choosing to become the parent and could make decisions for this child. I would think then that the money owed would become a civil matter, where the couple could sue Crystal for repayment, but lost their leverage because they agreed in this instance to give up their parental rights. Am I misreading this, or did Kron misguide her?

  14. Amy Demma says:

    “If this isn’t evidence of the need for a brutally honest conversation between intended parents, surrogate, and surrogacy agency before conception, I don’t know what is.”

    Agreed, Dawn and also agree with Pat Johnston’s post about the need for multi-discipline professionals in complex assisted family building. The solution? Better consumer education on selecting an agency, independent legal counsel (experienced in such complex matters), significant involvement by a mental health professional to first vet the surrogate as a candidate for the process (this surrogate’s financial situation might have been a red-flag as to her motivation for so aggressively pursuing a match) further MHP guided next steps in assessing whether or not this couple and this surrogate were of shared mind on termination (as well as many other issues). Continued presence by the MHP in assisting both parties when a crisis presents.

    The fact of the matter is, termination cannot be imposed upon any surrogate. Perhaps the contract might have been a better instrument had it established conditions for termination, I am not so sure. Ultimately, the surrogate always has an an option the right to breach promises made (and pay damages).

    • Dawn says:

      Amy, would intended parents and surrogate hire separate legal counsel if they are working with a surrogacy agency? Also, would intended parents be expected to hire a separate mental health professional for the surrogate if they are working with an surrogacy agency?

  15. Michelle Nightengale says:

    What a bizarre story!

    I find it outrageous that 1) the intended parents and their attorney would have intimdated and bulled the surrogate mother into having an abortion AGAINST HER WILL if they could have gotten away with it and 2) those same parents who had every intention of killing this child now have visitation rights!

    I’m not sure I agree with the surrogate mother’s decision to usurp the intended parent’s rights either, but I DO believe we all have a right to live by our convictions and shouldn’t be forced to act against them. For that reason, I DO agree with her decision to move to Michigan and place the baby for adoption.

    All things considered, this situation turned out remarkably well. But wow…!

  16. Dawn Davenport Dawn Davenport says:

    Michelle, as I understand it, something was included in the surrogacy contract agreeing to termination “in the case of severe fetus abnormality”, but there was no discussion about where each side stood on abortion and on what was meant by severe abnormalities.

  17. Cyndi Elliott says:

    Yeah, to the degree that we could. We agreed on a course of action for items such as Downs, and a few other specific, relatively common things. We definitely agreed termination had to be on the table in case of something tragic, but of course there were gray areas. But we had agency, lawyer, etc. We had a lot of expensive help along the way…and though surrogacy never took for us and we decided against donor egg, it sure as heck prepared us for adoption. So many similar issues came up and we already knew exactly how we felt.

  18. Pat Irwin Johnston says:

    Once again, where were the truly competent 3rd party mental health professionals, educators and attorneys in this process! The lack of that set of safeguards is the only villainy.

  19. Pat Irwin Johnston says:

    oops! Pressed submit before the following sentence…

    The lack of that preparation and education is the villainy!

  20. Pat Irwin Johnston says:

    Once again, where were the mental health counselors, the lawyers and the educators in the matching process in the first place?! Complicated family building requires complicated preparation for all parties.

  21. Cyndi says:

    we had an agreement about termination in place with surrogate even though a pregnancy never came to be.

    • Dawn says:

      Apparently there was a written termination agreement, but no one pushed either side to examine how they really felt and no real agreement between the parties about what type of birth defects would warrant an abortion. Did you have these types of discussions with the surrogate or agency?

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