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.