The one defining difference between being a surrogate and being a birth mother is that the child does not belong to the carrier. For Crystal Kelly, the parents emphasized this point by having her sign a contract with a provision waiving her right to choose not to abort the pregnancy if fetal abnormalities were discovered. Perhaps when Ms. Kelly signed the contract she was unaware of that language or assumed it to be a nonissue because she refused to follow through with the terms of the contract after an ultrasound revealed that the baby had a cleft lip and palate, a cyst in her brain, and serious heart defects. She felt the baby should have a chance at life, while acknowledging that she could not be and did not agree to be the child’s parent.
The beauty of a contract is that people can negotiate and agree on terms, and then bind each other to the mutually agreed upon terms. Contracts entered under duress, without full disclosure, or with terms that could not be understood or plausible by one party are often considered void. In Crystal Kelly’s situation, however, she does not claim any of these reasons for refusing to comply to the abortion provision. She felt it was morally wrong to “play God.” What about the moral issues associated with breaking a promise? Or receiving money for a baby?
Even if refusing an abortion was the moral thing to do, it does not and should not free Ms. Kelly from the consequences associated with breaching a contract. The existence of a contract and the existence of a breach, are sufficient to sustain a claim for damages. Therefore, Ms. Kelly should have returned the monthly payments she received during her pregnancy, medical expenses that were paid for by the parents, legal fees incurred, and any other expenses associated with the agreement after electing not to have an abortion. In such case, moral issues pertaining to life and promises are sustained.
Crystal Kelly’s case also raises questions pertaining to social issues. In addition to the baby’s abnormalities, the doctor told the surrogate and the parents that the baby would undergo numerous surgeries through infancy, would likely not survive childhood, and may never walk, talk, or use her hands. With this information, the parents felt terminating the pregnancy was more humane given the interventions she would have to endure as an infant. Shouldn’t parents be able to determine what’s best for their child free from a surrogate’s judgment?