In the late summer of 2011, a 29-year-old woman named Crystal Kelley of Vernon, Connecticut, agreed to become a surrogate mother for a Connecticut couple who already had three children, all of whom had been born prematurely and two of whom had subsequent medical problems. The couple hoped for a fourth child who might be healthier if carried to term.
The contract that the three adults signed was brokered through a surrogacy agency, one of hundreds such businesses that have sprung up across America since the early 1980s, when it first became possible to transfer a fertilized human egg into the uterus of a woman who was not the biological mother. In this case, Kelley was to be injected with two frozen embryos that the couple said they had created through in vitro fertilization (IVF). Connecticut, like about 30 other states, has no laws on its books either banning or permitting surrogacy, but Connecticut courts have approved the arrangements, ruling that the “intended parents”—the people for whom the surrogate has carried the infant—may be listed on the baby’s birth certificate as its legal parents without having to go through a formal adoption proceeding, as long as they are the infant’s genetic parents. At the time she signed, Kelley was an unemployed nanny struggling to raise her own two daughters on child-support payments from her former husband. The contract called for her to be paid a total of $22,000—toward the low end of the range of $20,000 to more than $40,000, plus medical and related expenses, that surrogate carriers can earn these days by the time they give birth.
One of the transferred embryos successfully implanted, and everything went swimmingly for the first five months of Kelley’s pregnancy. Then, when an ultrasound examination during the 21st week revealed that the baby, a girl, was likely to be born with severe defects, everything went catastrophically wrong. The intended parents tried to enforce a clause in the contract requiring Kelley to abort a defective fetus. Kelley fled to Michigan, which outlaws surrogacy agreements, and ultimately gave up the baby for adoption. The Kelley saga has turned into a case study with multiple meanings, depending on where you stand on the contentious and still highly controversial issues of surrogate motherhood and artificially assisted reproduction in general.
The surrogacy agency that Kelley and the couple worked through, Surrogacy International, was operated by a woman named Rita Kron, who already had a reputation for corner-cutting among commenters on Surromomsonline.com, a chatroom/message board/classified-ad clearinghouse for women who decide to become surrogate mothers. The phone number on Surrogacy International’s website features the 718 area code of New York City’s outer boroughs, but Surrogacy International claims to be based in Pennsylvania, where, it says, surrogacy is legal (in fact the legality of surrogacy in Pennsylvania is not at all clear, and my phone messages to Kron in New York to inquire about this issue went unanswered). It was Kron who introduced the couple to Kelley, who sorely needed the $2,200-a-month installments that the surrogacy arrangement would pay her.
When the ultrasound revealed in February 2012 that the baby girl had a cleft palate plus serious heart and brain abnormalities, the intended parents offered Kelley $10,000 to have an abortion. Kelley first agreed, if she could be paid $15,000 instead of $10,000, but after the couple turned down that counteroffer, she balked completely. The couple hired a lawyer, Douglas Fishman of West Hartford, who wrote Kelley a stern letter insisting that she terminate the pregnancy immediately (abortion is illegal in Connecticut after 24 weeks) and warning her that she might have to pay thousands of dollars in damages and medical expenses if she failed to schedule the procedure. In fact—although Kelley didn’t know it at the time—no court would ever force a woman to abort a baby. After Kelley found a lawyer willing to represent her gratis so she could contest the contract’s abortion clause, the intended parents told her they planned to leave her stuck with the baby, she said. In April 2012, seven months pregnant, she took off with her daughters for Michigan, which not only criminalizes surrogacy but recognizes the woman who bears the child as its legal mother. There she found a couple willing to adopt the baby.