Surrogate crosses border to give birth to child with disabilities - paying parents wanted abortion

Heartbreaking saga is filled with wrenching decisions and their consequences

By: IrishCentral Staff Writers | Published Saturday, March 9, 2013, 8:25 AM | Updated Saturday, March 9, 2013, 8:25 AM

Five months into her surrogate pregnancy, Crystal Kelley got bad news - ultrasound scans had revealed a series of disabilities. Tragically she and the parents came to different conclusions about what should happen next.

According to the Daily Mail, Kelley had been paid $22,000 to have the Connecticut couple's baby but when the complications came to light she fled across the country, having refused their instructions to abort it.

Kelley, 29, flew to Michigan to give birth to the child, leaving it there to be fostered, disregarding her original commitment to raise the child either by herself or by the intended parents.

The tragic tale reportedly began in August of 2011 when Kelley, who has two children of her own, fell into financial difficulties and decided to offer her services through an established surrogacy agency to a couple who desperately wanted a fourth child but were unable to.

The couple reportedly paid $22,000 to Kelley for her participation. An embryo the pair had left over from a previous round of in-vitro fertilization was used on October 8 and ten days later Kelley was pregnant.

According to the Daily Mail the new would-be mother phoned Kelley each morning to offer her morning sickness sympathy. She also bought Kelley and her two daughters Christmas presents and paid the monthly surrogate fee early to help her out.

'She said, 'I want you to come to us with anything because you're going to be part of our lives forever,'’ Kelley told CNN.

In February though, the atmosphere changed when ultrasound tests showed the baby was not developing as was hoped. Doctors suspected that the baby had a cleft lip and palate, a cyst in her brain and very serious heart defects. They couldn't even see a stomach or a spleen developing.

Then on February 16, 2012 their worst fears were confirmed. Physicians at Hartford Hospital said the baby would need several surgeries after birth and had only a 25 per cent chance of living a normal life.

A letter was reportedly sent to Kelley's midwife in which Doctor Elisa Gianferrari, a maternal fetal medicine specialist at Hartford Hospital, and Leslie Ciarleglio, a genetic counselor, outlined the surrogate parents' wishes.

'Given the ultrasound findings, the parents feel that the interventions required to manage the baby's medical problems are overwhelming for an infant, and that it is a more humane option to consider pregnancy termination,' they wrote according to CNN.

However, Kelley, who is staunchly religious, disagreed and said that 'all efforts should be made to give the baby a chance.'

The situation reportedly developed into an emotional stand-off between the parents and Crystal.

'They said they didn't want to bring a baby into the world only for that child to suffer. They said I should try to be God-like and have mercy on the child and let her go,' Crystal told CNN. 'I told them that they had chosen me to carry and protect this child, and that was exactly what I was going to do,' said Kelley. 'I told them it wasn't their decision to play God.'

In response to these developments the couple informed Kelley's agency at Surrogacy International that if she brought the pregnancy to term they wouldn't be the baby's legal parents, leaving the child to her.

Since the only income she could count was the surrogacy fee and child support from her own daughters' father, this gave Kelley pause.

Then Rita Kron from Surrogacy International reportedly explained the realities of bringing up a disabled child. She added that the surrogate parents would pay her $10,000 to have the termination. Kelley refused, and in a gesture that led some to question her motives she demanded $15,000 to have an abortion instead.

Now Kelley describes this as a moment of weakness, insisting to CNN that she immediately regretted her counter-offer, which was refused by the parents.

With the 24-week legal limit for a legal termination approaching, the desperate couple hired a lawyer.

'You are obligated to terminate this pregnancy immediately,' wrote Douglas Fishman, an attorney in West Hartford, Connecticut. 'You have squandered precious time.'

Fishman reminded her that she had signed a contract agreeing to 'abortion in case of severe fetus abnormality.' But the contract did not stipulate what this actually meant.

Nevertheless Fishman said she was in breach of her contract and that if she did not abort she would be sued for the money already paid, which was $8,000 and the medical fees and legal fees to date.

Kelley replied by hiring her own lawyer, Michael DePrimo, an attorney based in Hamden, Connecticut. She had decided to fight back by sticking to her own resolution not to have the abortion.

'Kelley was more than willing to abort this fetus if the dollars were right,' Fishman noted in a letter to DePrimo.

The story took another jaw dropping turn when the surrogate parents changed their minds and said they would now exercise their legal rights to take custody of the child, but would surrender her to the state of Connecticut for foster care after the birth.

DePrimo then explained to Kelley that the law was firmly on the parents' side. But she replied that she could not accept the baby would be placed in foster care.

Having run out of options, Kelley was advised to go to a state where the birth-mother and not the genetic parents would be considered the legal guardian.

On April 11 in her seventh month of pregnancy, Kelley moved her daughters to Michigan and as she was driving away she told her attorney to inform the couple of her plans.

'Once I realized that I was going to be the only person really fighting for her, that Mama bear instinct kicked in, and there was no way I was giving up without a fight,' Kelley told CNN.

Once established in a small sub-let in Ann Arbor, Kelley came to another realization: she could not keep the child, but instead she would give it up for adoption in Michigan.

She soon located a couple who wanted to take on a special needs child as she prepared to come to term and hand the child over.

Meanwhile in Connecticut the parents filed an order in Superior Court that they wanted to be the legal guardians, but they were forced to admit that the wife was not the baby's genetic mother as an anonymous egg donor had been used.

Against a backdrop of legal battles being thrashed out in court, the child, a girl, was born on June 25 weighing six pounds, with Kelley's name on the birth certificate.

Three weeks later both sides came to an understanding, the father gave up his paternal rights so long as he and his wife could keep in touch with the Michigan adoptive parents. In the seven months since, the couple have visited the child known as Baby S and held her in their arms.

According to the Daily Mail the child's medical problems are now far more serious than the ultrasound first revealed.

She has a birth defect called holoprosencephaly, where the brain doesn't completely divide into distinct hemispheres. She also has heterotaxy, which means many of her internal organs, such as her liver and stomach, are in the wrong places in her body. Her head is small, her right ear is misshapen, she has a cleft lip and a cleft palate, and a long list of complex heart defects.

She's already had one open-heart surgery and surgery on her intestines, and over the next year she'll have one or two more cardiac surgeries.

If the child, named Baby S for legal reasons, does survive, there's a 50 per cent chance she won't be able to walk or talk.

As far as Kelley is concerned though she did the right thing, even though some people have sent her hate messages through her blog, Surrogate Insanity.

'I can't tell you how many people told me that I was bad, that I was wrong, that I should go have an abortion, that I would be damned to hell,' she said. 'No one else was feeling this pregnancy the way that I was. No one else could feel her kicking and moving around inside,' she said.

'I knew from the beginning that this little girl had an amazing fighting spirit, and whatever challenges were thrown at her, she would go at them with every ounce of spirit that she could possibly have. No matter what anybody told me, I became her mother.'