Surrogate Mother Refuses to Have Abortion

Baby S. with her adoptive mother (left) and Kelley (right) aged seven (7) months now resides in Michigan with her adoptive family.

Baby S. with her adoptive mother (left) and Kelley (right) aged seven (7) months now resides in Michigan with her adoptive family.

This story raised concerns across the ART community last year, from adequate screening of gestational carriers and the reasonableness and appropriateness of compensation for gestational carriers, to the constitutional right to travel and to parent, and the choice of substantive law in gestational carrier contracts.

Crystal Kelley, a single mother of two girls, entered into a surrogacy contract with a couple in Connecticut. However, after a five-month ultrasound revealed serious abnormalities with the fetus (cleft lip and palate, a brain tumor and heart defects, among others), the intended parents requested that Kelley have an abortion pursuant to a specific provision in the surrogacy agreement. The parties offered Kelley an additional $10,000.00 above her $22,000.00 surrogacy contract to perform the abortion. Kelley refused and the intended parents filed suit against Kelley for breach of contract. They demanded that if she did not abort the fetus she would be sued for the monies already paid under the surrogacy contract in the amount of approximately $8,000.00, in addition to the legal and medical fees to date.

When Kelley refused to abort, the intended parents told her that they would take custody of the baby at its birth, but that they would hand her over to foster care.

Kelley, distressed at the idea of the unborn child becoming a ward of the state, decided that her only option was to fight for the child. In a spur-of-the-moment decision, Kelley packed her van and her two children and drove for over 12 hours straight from Connecticut to Michigan where Baby S. was born with severe disabilities. Under Michigan law, Kelley was considered the legal mother of the unborn child despite the fact that she was not the biological mother. Knowing that she was not in a position to financially care for a child with severe medical needs, Kelley identified an adoptive family for the babies who have cared for her since birth.

Kelley believes she made the right decision by choosing to have the baby. Despite a multitude of hate messages received on her blog, Surrogate Insanity, Kelley told CNN that “no matter what anybody told me, I became her mother.”