Connecticut is viewed nationally as a surrogacy friendly state, a place where almost any childless couple can legally enter into a contract with a surrogate to be implanted with a fertilized egg.
Connecticut’s family law gives the would-be parents almost all the legal power and choice in such an arrangement, and makes Connecticut a destination for parents and fertility services.
State law differences were a key factor when New York City pharmaceuticals executive Stanislav Stoyanov and his wife Vesselina, in 2011 entered into a contract with Crystal Kelley, then of Willington. Although New York does not recognize surrogacy contracts, the Stoyanovs relied on Connecticut law when they agreed to pay Kelley $22,000 to carry and deliver their child. Kelley was implanted with an embryo that had been fertilized in vitro with a donated egg and Stoyanov’s sperm. The wait began.
Under Connecticut case law and statutes, most parental rights follow the DNA of the fetus in a case like this. You could call Connecticut a "gene theory" state. This contrasts sharply with the law in Michigan, which could be called a "womb theory" state. Michigan does not recognize surrogacy contracts for money, on public policy grounds. In addition, a lawyer or anyone else who facilitates a paid surrogacy can be criminally liable for up to $5,000 in fines. Regardless of whose egg and sperm created the baby, the woman carrying the child can regard it as legally her own baby in Michigan, according to Dearborn, Mich. adoption lawyer Herbert A. Basil.
"The law from one state to another is all over the board," said Michael DePrimo, the Hamden solo who represents Kelley. He says that if problems arise between the intended parents and the surrogate, it often becomes strategically important to choose a favorable legal forum. "What prohibits anybody from going to the state that is most agreeable to their legal objectives — or moral philosophy?"
At the beginning, Kelley didn’t have any problems with Connecticut surrogacy law. In October 2011, she traveled to the Reproductive Science Institute of Suburban Philadelphia to undergo implantation of the embryo. Her contract, through New York-based Surrogacy International, controlled a wide range of health concerns. The contract required her to abstain from having tattoos, piercings or sex. She was obligated to have regular monthly health checkups.
On February 13, 2012, Kelley had a sonogram at the Women’s Health Associates in Danbury, which detected fetal abnormalities. Three days later, under more powerful tests at Hartford Hospital, doctors discovered the fetus had no discernible stomach, two spleens, and complex cardiac defects, along with a clearly visible cleft lip. Hartford Hospital obstetrician Dr. Elisa Gianferrari called this a "very complicated pregnancy."
Suddenly, the language in the contract about terminating the pregnancy became relevant.
Under one term of the contract, Kelley had agreed to an abortion "in case of severe fetus abnormality." The contract provided a $2,000 fee to her for doing so — one of 107 named fees listed in the agreement. In what she says was a "moment of weakness" Kelley told her agent she would consider having an abortion for $15,000, which was not accepted by the intended parents. The couple countered with an offer of $10,000, which Kelley rejected. The couple inquired, through the surrogacy agency, whether Kelley had scheduled an "appointment for termination." She emailed back a one-word message: "No."
Through an Arizona-based anti-abortion group, Kelley began getting legal help pro bono from DePrimo, a constitutional law activist who operates First Amendment Advocates and Defenders.
The day after Kelley wrote "No," to the couple’s abortion question, she was sent an urgent letter from West Hartford lawyer Douglas I. Fishman, who operates Hartford Mediation and Law, Inc. The Stoyanovs turned to Fishman at the eleventh hour to prevent Kelley from breaching the "severe fetal abnormality" clause, and he reiterated the penalties provided in the contract for breach.
Time was short, and the Feb. 22 letter had a tone of desperation. It said "you have squandered precious time," because she was about to reach her 24th week of pregnancy on March 5, "and the abortion must take place before that date." "Time is of the essence," it emphasized, in all capital letters.
Fishman warned that Kelley, a former nanny, would be personally liable for the tens of thousands in medical costs to date, would only get $2,000 for termination, and faced "demands for specific performance according to the terms of the contract" i.e., a court-ordered abortion.
Those costs, he wrote, would include agency fees, lab fees, medication, doctors’ fees, embryo transfer fees, medical expenses, transportation and legal fees.
Up until that point, Kelley needed the $2,222 monthly payments from the couple to pay her rent and provide for her two pre-school daughters, but those payments stopped abruptly. When Fishman filed a motion in Rockville Superior Court to have Kelley found in breach, DePrimo filed a motion to dismiss on five separate jurisdictional grounds.
"I pointed out in my motion to dismiss [that] the intended parents are residents of New York, which doesn’t recognize surrogacy agreements, as contrary to New York public policy."
DePrimo said he realized that while the contract’s choice of law provision designated Connecticut, "there was no choice of forum agreement. So you could actually go to any state and have those rights adjudicated."
DePrimo liked Michigan.
He contacted Brail, who for decades had been working in the field of surrogacy agreements and adoption law. In the aftermath of the Mary Beth Whitehead "Baby M" surrogacy case in 1988, Michigan outlawed surrogacy for hire.
Brail worked with Kelley to locate an adoptive family. In late June of last year, Kelley gave birth to the girl, Baby S.
Gestation moved faster than litigation. After Fishman attempted to have his clients declared the legal parents of the infant in Rockville Superior Court, DePrimo moved to dismiss on multiple jurisdictional grounds. Before the Connecticut courts ruled, says Brail, Kelley gave birth to Baby S.
A Michigan birth certificate was issued, and Kelley, as the baby’s mother, placed the baby for adoption with a seven-member Michigan family. The biological father, Stoyanov, eventually terminated his parental rights. According to an affidavit from a fertilization doctor, the in vitro fertilized egg was actually donated by an anonymous donor, requiring no further surrender of parental rights.
Although the legal case has ended, it will certainly not be the last time a surrogacy case is litigated here.
There are several reasons why Connecticut is an attractive legal destination for would-be parents in other states seeking a baby through gestational surrogacy. Sharon Lamothe, of Seattle, Washington, says that Connecticut is regarded nationally as one of the most "surrogacy friendly" states in the nation, for several reasons.
Connecticut has been a pioneer in recognizing same-sex unions and marriages. Through court decisions, the state has made it easier for non-biological parents to appear as parents on birth certificates, without going through the process of adoption.
In 2005, as a surrogate for two New York men, Lamothe stayed in Greenwich and had a baby under a surrogacy agreement, with the adoption finalized in Norwalk Superior Court. She was represented by Donald B. Sherer, an adoption lawyer and former state legislator in Stamford. Lamothe, originally from Maine, had a surrogacy business in Florida, and in 2007 moved to Washington state to start a business advising couples on their fertility options. "You can’t do paid surrogacy in Washington state," she noted. So she picks states for her clients based on their laws. "I send married couples to Texas and Florida, singles and gays to Connecticut and Illinois."
When Lamothe acted as a surrogate in Connecticut, she had a male same-sex couple as clients. "I had to go to [Norwalk] family court with the intended parents, very pregnant, and tell the judge this is not my child, I’m not claiming the child," Lamothe said. "We actually had to educate the judge because we were one of the first cases she had seen."
DePrimo, who has a right-to-life philosophy, said he’d like to see Connecticut join New York and Michigan in rejecting surrogacy contracts as against public policy. The crazy quilt of state laws is not a good situation, he says. "There are states that declare these agreements void as against public policy, there are states that have statutory schemes that approve of the agreements, and there are other states, like Connecticut that are completely silent about it.
Having navigated the dramatic differences between states in the Baby S. case, DePrimo feels the case came out as well as it could, under the circumstances. "The reason there is no federal family law, and that states are left to decide their own laws of marriage, divorce and custody, is because the Constitution left those matters to the states. DePrimo said he doesn’t like the notion that birth-contracts-for hire would become a new area of federal legislation under the Commerce Clause.
"You can’t have contracts over a human life," he said. "People aren’t soybeans."•