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$10,000 to abort? Surrogacy case reveals moral holes, bioethicist says

Crystal Kelley got paid $22,000 to have a baby. But that wasn’t the only offer the 29-year-old Connecticut mother of two received. After an utrasound at 21-weeks revealed significant medical issues, the parents offered her $10,000 more if she agreed to an abortion.

The gross immorality of that second offer tells us that there is a lot wrong with the first arrangement. It is intolerable that our society continues to put up with an unregulated, free market in hiring cash-starved women to make babies. 

The couple, which had two other children, "were very attentive," Kelley told NBC Connecticut. "They wanted to be involved in the pregnancy. [The biological mother] said she really felt like she was living through me in this pregnancy and she wished she could experience it.”

But after the tests revealed complex heart problems, a cleft lift and palate and other issues, the would-be parents decided that the pregancy should be terminated. Kelley refused, even after the money was offered after she was told the parents would no longer adopt the baby.

Then things went from ethically bad to ethically despicable. According to a CNN report, Crystal Kelley then got a letter from an attorney named Douglas Fishman reminding her that her surrogacy contract required her to get an abortion in the case “of severe fetus abnormality.” The lawyer told her that if she did not promptly get an abortion the no-longer-wannabe-parents would sue her to get back the money they’d paid along with the money they’d spent on Crystal’s medical bills and legal fees.

This crummy story goes on and on (for those who are curious, Kelley did eventually give birth and was able to find another couple to adopt the child), but there is enough on the ethical plate to see that there is plenty wrong with commercial surrogacy if a woman can be bribed or bullied into an abortion.

Let’s do the low hanging ethical fruit first.

No one can contract with a woman to have an abortion. Under any circumstances. For any reason. Never. A woman controls her body and no one can make her do anything she does not want to do in terms of medical intervention with her body no matter what she has said before, signed or promised. The lawyer who tried to coerce and threaten Crystal Kelley to have an abortion should be subject to loss of his license to practice law. Any surrogate agency which conveyed an offer of money to encourage an abortion is guilty of at best bribery and an attempt to crassly manipulate a vulnerable woman. And any surrogacy agency that sticks abortion language into its contracts is guilty of gross misconduct.

Now let’s go for the broader moral lessons evident from this horrific tale.

Surrogacy for money is about money -- not love, or help, or altruism or doing good. Money is most attractive to those who need it most. Young single mothers with kids to feed and bills to pay and the rent in arrears are not likely to read the small print. If we are going to put up with markets in wombs, then the least we can do is mandate by law that the potential surrogate has her own lawyer that she picks but that is paid for by the couple who want to rent her womb.

In addition, we need legislation that makes it absolutely clear that if you hire a surrogate you will legally be bound to accept and raise any child that results. Would-be parents who use surrogates must understand that if a fetus is found to have problems, it is their responsibility, not the surrogate’s, to resolve them. If you enter the genetic lottery via surrogacy, you have to live with the consequences: that is the only way to insure the interests of children made via surrogacy are protected.

Lastly, we need tighter control over those in the commercial surrogacy broker business. If Crystal Kelley’s story is any indication, there are a lot of brokers out there who are far more interested in making an easy dollar then protecting the women whose wombs they offer for sale or the children who may result from surrogacy arrangements.

Technology has given us many new and valuable ways to make babies. The free market – complete with its shady middlemen and lawyers -- is not up to the task of deciding how best to use that technology.

Arthur Caplan, Ph.D., is the head of the Division of Medical Ethics at NYU Langone Medical Center.