In recent weeks, Connecticut surrogate mother Crystal Kelley grabbed international headlines when, breaking her $22,000 gestation contract, she refused to have an abortion at the would-be parents’ request. Serious genetic abnormalities were discovered in the fetus she was carrying.
The New York couple offered Kelley $10,000 to abort — $8,000 more than the "termination fee" in their contract. Instead, with the help of Hamden lawyer Michael DePrimo, Kelley chose to bear the child.
DePrimo consulted with Dearborn, Mich., adoption and surrogacy lawyer Herbert Brail. He and attorney Noel Kane spent the early 1980s pioneering paid surrogacy. Then, in 1988, their practice niche was legally abolished in Michigan. The state’s courts can not recognize paid surrogacy contracts, and even facilitating paid surrogacy is a serious crime there.
So, when Kelley left Connecticut for Michigan, her legal rights changed dramatically. She gained a presumption of fitness to be the baby’s mother. In New York, the contracting couple’s rights dimmed. At one point, the New York couple discussed taking custody of the newborn by court action in Connecticut, then abandoning it to state care under Connecticut’s Safe Harbor Act, which allows newborn babies to be left at firehouses or emergency rooms with no legal repercussions to the parents.
Eventually, the biological father waived his paternity claim, opening the way for Kelley to offer the child for adoption by a welcoming family experienced in caring for special needs children. Brail expanded on surrogacy law history and trends in a recent discussion with Senior Writer Thomas B. Scheffey.
LAW TRIBUNE: How did you get started in this field?
BRAIL: My experience with surrogate parenting goes back to 1982, when I first became a lawyer, and even in law school before that. I worked with an attorney named Noel Keane. He’s considered the father of surrogate parenting. You remember the case of Mary Beth Whitehead in New Jersey?
LAW TRIBUNE: Yes. People were calling surrogate parenting the sale of human beings, and talking about the 13th Amendment and slavery. The New Jersey courts calmly determined that this is a basic custody issue.
BRAIL: Out of hundreds and hundreds of cases Noel and I did in the 1980s, a couple of them went wrong. That Baby M. case was one of them. In reaction to that, the lieutenant governor of Michigan, in 1987 and 1988, drove a campaign through the legislature to outlaw surrogate parenting. [Michigan] passed the Surrogate Parenting Act that makes such contracts unenforceable, and gives the woman who gave birth to the child the priority claim to custody until a court determines otherwise.
LAW TRIBUNE: Is this considered a model or pioneering act?
BRAIL: Given what I was doing in the 1980s, I considered this a very offensive act. Noel and I were working on hundreds of surrogate parenting agreements over those years, and this essentially put an end to it in the state of Michigan. I decided to remain in Michigan, and focus on adoption law. Noel ended up with offices in New York and Indiana and California, so he could continue to do surrogate parenting.
LAW TRIBUNE: So was the existence of this Michigan law the main strategic advantage this Connecticut surrogate mother gained by coming to your state?
HERBERT BRAIL: Michigan law holds that any agreement, arrangement, contract for surrogate parenting is void and unenforceable. So with that information, Crystal made a decision to move to Michigan to avail herself of our laws that do not really support assisted reproduction, as your Connecticut law would. I believe [the Michigan] law allows the genetic parent to be legally recognized over the rights that a gestational surrogate carrier might have.
LAW TRIBUNE: Your Connecticut co-counsel on this, Mr. DePrimo, does appellate constitutional law work for conservative Christian groups. How do you describe your own practice?
BRAIL: I’m in a solo law practice doing adoption work, and some assisted reproduction, but given the state of law in Michigan, it’s not what it was in the 1980s. My wife operates a licensed Michigan adoption agency. Day in and day out, I’m doing adoption work.
LAW TRIBUNE: Although it’s not legal in Michigan, do you think surrogacy is going to be with us into the future?
BRAIL: Absolutely. I would be the biggest advocate of changing the Michigan law. But given Crystal’s position, and Michael DePrimo’s inquiry, Michigan was the perfect place for her to come to and give birth.
LAW TRIBUNE: The legal and ethical complexities of Crystal Kelley’s surrogacy case leave a lot of open questions. Was it a tough case, legally?
BRAIL: Fortunately we got a voluntary waiver from the father of any interest in custody, which a father can do under Michigan law, either before or after the baby is born.
LAW TRIBUNE: Did you know about the discussion of the intended parents using Connecticut’s Safe Harbor Act to place the baby in state custody, by leaving it in an emergency room?
BRAIL: I found that highly offensive, and it was completely contrary to what Crystal wanted to do, in terms of making a responsible plan for custody for this child. My whole process is focused on placing children in safe and suitable homes. And the last thing that children want is to be abandoned by their parents — they want their parents to have made a plan for them. I’m an adoptive father of a 22-year-old daughter, and have been following my clients over the years as well, so I know something about it.
LAW TRIBUNE: The possibility for forum shopping — changing the applicable law by changing states — is enormous here. Is Connecticut being viewed as kind of a destination state for parents who want to set up a surrogacy contract?
BRAIL: It would seem so in this case, since the law specifically chosen in the contract was Connecticut’s.•