Who Has the Right to Make the Ultimate Choice?



Abortion is a hot-button issue under any circumstance; however when the question involves who has the right to request an abortion in a surrogacy situation, the water becomes infinitely murky.  Crystal Kelley, a Connecticut citizen, thought that she was doing the right thing by helping a couple who could not conceive have another child.  The relationship seemed perfect at first, with the donor family offering assistance at each step during the pregnancy.  Things quickly turned sour, however, when tests revealed that the baby had severe defects, including problems with her heart and a cleft lip/palate.  The donor family requested that Kelley have an abortion as they did not want the baby to suffer.  Despite an offer of ten thousand dollars, Kelley did not believe in abortion and decided to fight to keep the baby.  While she did not want to have a baby of her own, she wanted to give the girl she was fighting so hard for a fighting chance with a loving family of her own.


That is when the lawyers got involved.  After the donor family informed Kelley that they would not honor their surrogacy contract if the abortion was not performed.  The family hired a lawyer and demanded that Kelley obtain an abortion and that she has already “squandered precious time.”  According to the surrogacy contract, Kelley had agreed to “abortion in the case of severe fetus abnormality.”  Yet, this vague term was not defined and Kelley decided to hire her own lawyer to fight for her rights. 


According to Connecticut law, the legal mother of a child is the donor.  If Kelley decided to go through with the pregnancy, the donor parents would “assert their legal right to take custody of the child – and then immediately after birth surrender her to the state of Connecticut.”  In order to circumvent this, Kelley decided to move to Michigan where the surrogate is the legal mother of a baby, and also has a preeminent children’s hospital.  To further complicate the matter, it was later determined that the donor family had used an anonymous egg donor.


Kelley went through with the pregnancy and the baby, while still going through many medical procedures, is living with a happy family, but this story leads to many perplexing legal problems.


Can a donor family legally force someone to have an abortion against their will?  Can abortion even be a legally contracted term in a surrogacy contract?  Is the surrogate the legal mother until the baby is born?  What happens when there is an anonymous egg donor and the only genetic connection to the baby is the father?


Again I don’t wish to argue for or against abortion, only discuss this complicated legal situation.

Source: CNN

Picture: Secular Pro-Life Blog

One comment

  1. Although this is a very complicated and touching issue, I think after everything is said and done, the law must prevail. But, unfortunately, in this situation, the law is murky on this issue. In Connecticut, the donor is the legal mother. So, we know who has rights to the baby when it is born, but, what about before? What about when the baby is still in the surrogate’s body? I would imagine that the donor still calls the shots when it comes to the fetus. Does the donor mother also control the surrogates body while the fetus is still inside her? If we are logically following the law, I think that the donor mother can make decisions when it comes to the baby, but the law is unclear on whose choice it ultimately is regarding abortion. The fact that the family used an anonymous egg donor actually makes things easier. Since the contract did not specify what to do in this specific situation and the baby is not biologically the “donor mothers,” the surrogate mother should be able to decide whether she wants an abortion.

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