'You are Obligated to Terminate this Pregnancy Immediately': The Contractual Obligations of a Surrogate to Abort Her Pregnancy

When Crystal Kelley learned that a couple wanted to hire her as their surrogate, she was ecstatic. Raising two children of her own, Crystal yearned for the opportunity to help another couple achieve their dream to become parents. And while Crystal’s motives were certainly altruistic in part, she was a single mother with a high school degree, doing her best to provide for her own family. The $22,000 fee that Crystal would be paid would help not just with medical expenses, but also with rent and birthday gifts for her own girls. It seemed to be a perfect situation for everyone, especially when one of the two embryos that the intended parents already had frozen was successfully implanted and Crystal became pregnant. About halfway through her pregnancy, Crystal and the intended parents learned some heartbreaking news about the fetus. The fetus appeared to have a cleft palate, a heart abnormality, and potentially Down syndrome. While Crystal was devastated by the news, the response of the intended parents was simply shocking: the intended parents mandated that the child be aborted — and soon. When Crystal refused, even after being offered $10,000 for her to have the abortion, Crystal and her lawyer returned to the surrogacy contract that the parties had signed months before, which included a clause discussing the termination of the pregnancy. The surrogacy agreement, which was signed in Connecticut where surrogacy contracts are legally enforceable, stated in part that Crystal would abort "in case of severe fetus abnormality." Crystal adamantly believed that the child should be given a chance to survive, even if it meant a childhood of countless surgeries and likely lifelong disabilities, so when her options were to abort the fetus, to surrender the child to the intended parents — who made clear that they intended to abandon the child to the foster system immediately upon her birth — or to flee to a state that did not legally recognize surrogacy agreements, Crystal took her two children and moved to Michigan. A few weeks later, Baby S was born and adopted by a loving family. While the story of Crystal and Baby S may be extreme, termination clauses regularly are included in surrogacy contracts; in fact, it may even be considered malpractice for an attorney to draft a surrogacy agreement without a termination clause. With the amount of screening available to determine if a fetus is suffering from any medical problems or abnormalities, termination of at-risk fetuses has become more common. However, when the woman carrying the fetus is not the legal parent of the fetus, who makes the decision about when to terminate the pregnancy, especially when the terms of the surrogacy contract are vague? Court decisions and legislation have not fully dealt with this issue to date, but legal scholars consistently suggest that no court would require a surrogate to abort the fetus against the surrogate’s wishes. This contractual term, then, may be problematic in the case where a surrogate believes she must have the abortion, but, in reality, if the surrogate were to go to court, she would not be required to have the abortion. This discrepancy is even more problematic in situations where the surrogate is represented by an attorney paid for by the intended parents and unsophisticated with respect to the law on this issue. Part I of this Article discusses surrogacy contracts generally, first providing an overview of surrogacy as a form of assisted reproductive technologies (ART). This Part then considers surrogacy contracts as a whole, inspecting standard terms and conditions included in these agreements. Part II examines the woman’s right to choose whether to terminate the pregnancy or carry the fetus to term by examining the Supreme Court decisions regarding abortions. Part III considers whether a surrogate should be able to contractually surrender her right to abort, specifically considering this question in the instances of both traditional and gestational surrogacy. This Part concludes with suggested legislation that states could enact to ensure surrogate protection and possible contract-drafting strategies that lawyers could adopt in creating surrogacy agreements to ensure that the desires of both parties are fully explained prior to implantation.