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.