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Surrogate mom carrying triplets fights biological parents on abortion

Last Updated Dec 17, 2015 10:44 AM EST

A surrogate mother carrying triplets says she wants to have all three babies, despite pressure from the biological mom and dad.

Brittanyrose Torres, who is 17 weeks pregnant, told The New York Post that the couple asked her to undergo a selective abortion on one of the three fetuses, to reduce the risk of medical complications and developmental disabilities. About 90 percent of triplets are born premature, greatly increasing the chances of problems with their lungs, brain development, and other organ systems.

Torres told the paper she agreed to be a surrogate after reading about the childless couple's plight on Facebook. She reportedly signed a surrogacy contract that would pay her at least $30,000 -- $25,000 for carrying one baby and another $5,000 if there were twins or more.

Torres, who lives in southern California, said she was initially implanted with two fertilized eggs, but one split in half and all three -- two male twins and one female -- have continued to develop. She says, so far, all three are healthy and she's offered to adopt one of them rather than abort.

The biological parents "knew from the beginning that we wouldn't want to abort unless it was a life-and-death situation," she told The Post. But the biological parents claim the surrogacy contract gave them the right to decide on an abortion.

"You have to remember that this is commercial surrogacy," CBS News legal analyst Rikki Klieman said on "CBS This Morning." "This is a business deal."

Not only is there a contract in such situations, she said, but in the "surrogacy-friendly" state of California, both sides are required to have legal representation, so there should be no doubts about the terms that were agreed to.

"There's a provision in this contract, like in many contracts, that for medical reasons, the intended parents can ask to abort," Klieman said. "But what you have here is a terribly emotional issue."

Even though the biological parents may have a legal right to abort one of the fetuses, "Physically, can they force her? No," Klieman said. "But what happens under the contract is, they can stop paying." Klieman added that the couple could potentially sue Torres for damages.

Dr. Arthur Caplan, director of the division of medical ethics at NYU Langone Medical Center, told CBS News that no matter what the contract says, "You can't waive the right to control your own body."

Caplan agreed no court would ever order the woman to under go an abortion. "I worry about a somewhat different scenario," he said. "Let's say the babies are born premature and the couple who hired the surrogate said, 'We warned you about that. We're walking.' Maybe the woman was willing to adopt one of these, so to speak, 'extra' children that weren't expected, but is she going to take them all? Are they going up for adoption? Any financial responsibility on the part of the couple? It's all murky, not spelled out by law."

Torres told The Post that she decided to go public with her story after reading about a similar case involving a surrogate named Melissa Cook, who is also carrying triplets and resisting selective abortion.