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‘It’s such an impossible decision’: Fatal fetal diagnoses and the state’s abortion ban


‘It’s such an impossible decision’: Fatal fetal diagnoses and the state’s abortion ban

Feb 10, 2022 | 5:51 am ET
By Annmarie Timmins
‘It’s such an impossible decision’: Fatal fetal diagnoses and the state’s abortion ban
Kelly Omu and her husband of Jaffrey made the difficult decision to terminate their pregnancy at 18 weeks after learning their daughter had a fatal fetal anomaly preventing her lungs and brain from developing. They came home with an imprint of her tiny feet that were no bigger than Kelly's wedding ring. (Courtesy of Kelly Omu)

Michelle Cilley Foisy plans to tell House lawmakers Thursday about the death of her daughter Kayla, who would have turned 16 in December. When the story becomes almost impossible to tell, Foisy reminds herself she’s telling it for women who today don’t have the options she had when they learn late in pregnancy their baby will not survive outside the womb.

That news came at 21 weeks for Foisy and her husband, Ryan

Their daughter had no brain, and her heart was missing a chamber. Death after delivery was certain, their doctor told them. Foisy and her husband needed time to absorb the news, consider options, talk with family, and do follow-up testing. 

By the time they got in with a doctor, Foisy was just over 22 weeks pregnant. The couple chose a medical abortion. Today, a delay of just days would make that choice illegal under the state’s new 24-week abortion ban because it has no exceptions for a fatal fetal diagnosis (nor rape and incest). And a doctor who did it could be imprisoned for up to seven years and fined between $10,000 and $100,000. 

“This is just not something that people do because they just say, ‘Oh, you know what, maybe I should have an abortion,’” Foisy said in an interview Wednesday. “It’s such an impossible decision.”

She added, “It is wrong to judge someone for making the choice to let their baby go. I’m choosing to let my child free from a life that doesn’t exist outside. I don’t think of it as me choosing to kill Kayla. I think of it as me choosing to let her go.” 

Last week the Senate rejected legislation that would have repealed the ban and a separate amendment that would have left it in place but added an exception for a fatal fetal diagnosis like Foisy’s. The 11-13 vote against the latter failed along party lines save for the support of Sen. Erin Hennessey, a Littleton Republican.

Thursday, the House Judiciary Committee will take public testimony on House Bill 1673, another attempt to repeal the abortion ban, as well as a bill and constitutional amendment that would prohibit the state from restricting access to abortion (House Bill 1674 and CACR 18).

Doctors have testified that very few abortions are performed after 24 weeks, and those that are are done under the most dire circumstances, such as protecting a mother’s life, removing a dead fetus, or allowing a family to end a pregnancy that will result in a still birth or a baby that will soon die. (The ban allows an exception only for the mother’s life.)

Women who have been faced with those difficult late-in-pregnancy decisions have also begun telling their stories in hopes of repealing the new law. They are stories of death and love. 

Kelly Omu and her husband of Jaffrey haven’t taken down the butterfly mobile they hung for their daughter, Mariposa, whom they lost in January. They treasure the imprint of their baby’s tiny feet.

The couple terminated their pregnancy in January at 18 weeks after an ultrasound showed a large cyst developing at the base of their daughter’s brain. They wouldn’t have known for weeks had Omu not hemorrhaged and required an early ultrasound in the emergency room. The image showed an unusual thickness on the baby’s neck, sometimes an indication of Down syndrome. 

This was the couple’s first pregnancy. Abortion wasn’t an option.

“We talked about it and decided we’ll love this baby no matter what as long as there’s quality of life,” Omu said. 

The couple was told to return in two weeks for genetic testing. When testing indicated no problems with the baby, Omu followed up two weeks later with another ultrasound. The tumor had grown three times larger. 

Sixteen weeks into the pregnancy, Omu got an appointment with a fetal maternal medicine specialist at Elliot Hospital. The growing cyst was interfering with the development of the baby’s lungs and brain. The doctor told Omu and her husband the prognosis for delivering a viable baby was not good but said they could wait two more weeks, enough time to get a better image of the baby’s heart and an understanding of the cause.

“My husband asked, ‘If we find out the reason behind this, is any of it reversible? Even if the swelling stopped today, would this fetus make it,’” Omu said. “And the doctor went, ‘No.’” The couple took the weekend to consider the diagnosis and do their own research. It took two weeks to get an appointment with an abortion provider in Boston, one of two places that provided abortions after week 15. The couple didn’t feel comfortable with the other option, Dartmouth-Hitchcock Medical Center, because the hospital was treating so many COVID-19 patients.

The day before the procedure, Omu testified at a Senate Judiciary Committee hearing in favor of Senate Bill 399, which sought to repeal the ban.

Those opposed to repealing or scaling back the ban quoted scripture, spoke of the “barbarism” of abortion, the rights of an unborn baby, choosing adoption over abortion, and the potential for errors in a fatal fetal diagnosis.

Omu offered a different perspective.

“I am 18 weeks now. Having to mourn this pregnancy loss is hard enough but having to navigate all these crazy hoops is too much,” she said. “What if I had found out at 24 weeks? How much more difficult would this have been for me and my family. The last thing we should have to do is let the government in the exam room with us.”

Omu continued.  “If you have the choice to say that abortion is bad, don’t do it,” she said. “But I should also have the choice to say my body can’t go through with the pregnancy.”

In a 3-2 party line vote, the committee amended the bill to remove the repeal and keep just the section clarifying ultrasound requirements before an abortion.

Dr. Oge Young, a retired OB-GYN who practiced in Concord, fought the abortion ban before it was passed as part of the state budget last year. He’s still fighting. 

“Not allowing maternal medicine specialists or OB-GYNs to help a couple terminate a baby that is not going to survive is appalling, just appalling,” he said. “These are babies without brains. No developed left ventricle. Babies that have no kidneys. It’s not like these are questionable diagnoses.”

Young said a lot of couples faced with a fatal fetal anomaly choose to terminate the pregnancy early so the baby is born alive rather than die in utero. “They want to have a live-born so they can hold that baby in their arms. So they can grieve.”

Michelle Cilley Foisy and two of her children in a family photo outside
Michelle Cilley Foisy of Temple with two of her seven children, Samuel, 6, and Alexander, 4. Her other children include two stepchildren, two teenagers, and Kayla. (Courtesy of Michelle Cilley Foisy)

That was the choice Foisy and her husband made. They held Kayla, who had already passed, for several hours and had her baptized. 

“She was 12 inches long and weighed 14 ounces,” Foisy said. “Her fingers and toes were perfect. Her little feet and hands are imprinted and hanging on my wall to look at every day. It was the hardest day of my life leaving her behind when I left the hospital the next day.”

Foisy now has four other children and two stepchildren with her now-husband, Sean, and counts Kayla as her seventh.

They celebrate Kayla’s birthday each year and keep a flower garden in her memory. 

“Not one day goes by that she isn’t thought about. She’s a huge part of our family,” Foisy said. “All of our kids know that Kayla is our angel and we talk about her all the time.” 

It wasn’t a choice a Monadnock-area mother who terminated her pregnancy at 27 weeks could make.

The woman, who asked not to be named for fear of judgment and backlash, became pregnant in her 20s while studying abroad. She had the standard ultrasound when she returned, about 24 weeks into her pregnancy. Concerned about gray matter in her son Andres’ brain, intestines, and abdomen, her doctor referred her to Dartmouth-Hitchcock Medical Center for more testing.

Multiple tests and medical appointments followed. Doctors tested her blood repeatedly and tried to draw her son’s blood from the umbilical cord, a painful procedure.

The results led to a heartbreaking diagnosis and prognosis. Cytomegalovirus, a common virus passed from mother to baby, was filling his body with blood and stunting his growth and brain development.  She was told there was likely no chance her son would survive the pregnancy, and, if he did, make it through labor. If he somehow lived through both, he would have no brain function or quality of life.

She had to travel to a clinic in California because it was the only place performing abortions at that stage of pregnancy.

The woman delivered her son following a three-day termination procedure. He was not only not alive, she was unable to hold him because the medical team said his body was in no condition to be handled. She left California with a picture of him and imprints of his feet and hands.

She canceled her baby shower and told her college she’d no longer qualify for family housing. She said she has told fewer than 10 people her story. She’s sharing it now because the debate about access to abortion has angered her.

“The way in which they talk about it is as if it’s just a woman who decided at 30 weeks along that she wants to kill a child,” she said. “It bothers me a lot because (they) clearly don’t know what type of situations are occurring.”

Her son would be 22 next month. She and his two siblings will wish him happy birthday.

“I don’t think there’s a day that goes by, still, after 22 years, that I don’t think about him,” she said. “He’s my first child.”

After sharing her wedding photo with the Bulletin, Kelly Omu asked that we remove the photo and not identify her husband by name for reasons related to his work.