Surrogacy vs. Baby selling: How to tell the difference

March 12, 2012Carole No Comments »

When is surrogacy not really surrogacy? The recent legal case of attorney Theresa Erickson sheds considerable light on at least one way to manipulate and defraud both intended parents and gestational carriers and redefine surrogacy as baby-selling for personal gain.

Most IVF programs in the US will produce embryos for couples (usually using their own gametes) and will transfer these embryos to a gestational carrier. The reasons patients require a gestational carrier are almost always medical. The intended mother no longer has a uterus or has other medical conditions that would make pregnancy a high-risk proposition. Typically, the gestational carrier has no genetic connection to the embryo because the carrier’s eggs are not used. This lack of genetic connection tends to clarify the maternal claims of the intended parents to the baby.

Most IVF programs don’t get involved in the legal arrangements between the intended parents and the surrogate although they may ask to see proof that such a legal arrangement exists prior to performing the medical procedures to create and transfer the embryos. In the state of California, the law requires that such a legal arrangement be in place before the embryos are created and transferred. California is progressive in that it not only recognizes surrogacy as legal but allows that if such a pre-surrogacy agreement is in place, the intended parents can have their name placed on the baby’s birth certificate at the time of the birth without filing for adoption.  Most state law does not even attempt to deal with these issues to support surrogacy. Some states ban surrogacy outright. Other states ban profiting from surrogacy. Some states don’t recognize surrogacy contracts as legally valid, thus discouraging surrogacy.

Some people saw this California law as an opportunity for illegal and unethical profit. Theresa Erickson who until last year was a highly respected  reproductive attorney specializing in surrogacy arrangements admitted to fraudulently submitting legal paperwork to the courts which claimed that pre-surrogacy agreements were in place which actually did not exist. What she admitted to doing was creating an inventory of pregnant surrogates which were then shopped around to prospective intended parents after the first trimester and whose babies were in effect auctioned off to the highest bidders.

How did Erickson and her co-conspirators manage to mislead both the surrogates and the intended parents? Surrogates were told that intended parents were waiting to adopt the children although they never met the parents in advance. This is a red flag. Ethical (and legal) surrogacy requires that parents and surrogates meet in advance and work out their legal obligations to each other in advance of any medical procedures. This did not happen in these (at least 12 admitted) fraudulent cases. Intended parents were told that the original intended parents (who did not exist) had backed out of the surrogacy agreement and they could now assume the initial surrogacy agreement for $150,000. Ironically, this ‘deal” was more than what they told the intended parents the original surrogacy agreement cost ($100,000).  Surrogates were told they would receive between  $38,000 and $45,000 to be surrogates but at least some of the surrogates were never paid.

The surrogates were sent overseas to an IVF lab (or labs?)  in the Ukraine where embryos were created from donor eggs and donor sperm. The resulting embryos transferred to the surrogates overseas and then the surrogates came home to have the babies. (Surrogates were required to give birth in California, to take advantage of  the supportive surrogacy laws). These overseas labs did not require any evidence of a surrogacy agreement before performing the medical procedures. No medical history is available on these Ukraine donors which is a great loss to the children who were created and their intended parents who will be responsible  for their medical needs going forward.

How did this scheme (allegedly in place since 2006) unravel? One surrogate was suspicious about the requirement to go overseas for the IVF procedure but since Theresa Erickson was so very well respected in the field, she did not question it further. When she was in her second trimester and had been told twice that the intended parents had backed out, she became suspicious again and contacted another attorney who contacted the FBI. The FBI investigated. Theresa Erickson,  Hilary Neiman, another attorney who operated an adoption/surrogacy agency in Maryland and Carla Chambers of Nevada, who served as the “surrogacy facilitator” were all convicted and sentenced to time (less than a year) in jail and under house arrest (also less than one year).

What actual fraud laws were violated?

From the legal blog  Financial Fraud Law, “According to court records, Erickson admitted to lying to the California Superior Court by fraudulently representing in court documents that these post-pregnancy agreements between the GC and IPs were legitimate surrogacies, which allowed Erickson and her co-conspirators to make over $400,000 in profit from the sale of parental rights. Specifically, Erickson admitted that she prepared and filed with the Superior Court of California, County of San Diego, declarations and pleadings that falsely represented that the unborn babies were the products of legitimate surrogacy arrangements—that is, ones that involved agreements between the IPs and the GCs prior to embryonic transfer. With these fraudulently obtained pre-birth orders, the IPs’ names would be placed on the babies’ birth certificates through a surrogacy and the conspirators would be able to profit from their sale of parental rights.”

The attorneys were convicted of wire fraud (payments were wired) and  and Chambers was charged with “monetary transactions in property derived from illegal activity.” There is no actual law against the scheme they used to basically, create an inventory of babies to sell to the highest bidder.

There is so much to be upset about regarding this story, it’s hard to know where to start. The only good news is that babies placed with intended parents by Erickson will stay with them because the intended parents are not guilty of any crimes in this scheme so those placements will stand.

One other victim of this scheme was trust between patients and their health care team. Melissa Ford in her blog Stirrup Queens, describes her own visceral reaction and feelings of betrayal when news came out that Erickson was found guilty in her post Theresa Erickson Sentenced. She felt especially betrayed by Erickson because she was well-respected in the infertility community and reached out to infertility patients through her blogs on surrogacy law. The feelings of intimacy created by the free exchange of personal stories and information on the internet make patients even more vulnerable to those who would exploit this intimacy for personal gain.

How can patients protect themselves? Be informed. Your doctor or your attorney should not be the only source of information regarding your medical options. You should find out all you can about your medical providers and your medical options from second opinions, other patients, friends, family, (yes, even the internet), the library and professional societies. You should use old tools like the Better Business Bureau and new tools like Angie’s List to evaluate medical business entities you might use.  Each of these sources will likely have some bias that, by themselves, might make them an unreliable source. But if your information comes from a variety of sources, I think you’ll be more able to pick out the voices that don’t ring true. The overly slick advertising. The overly practiced patient spiel. The special deals. The special protocol that you can only get at one place. If you are discouraged from asking questions or seeking other sources of information from a provider, walk away. We’d like to believe that our doctor or our attorney has only our best interests in mind and that the bad apple in the barrel is out there, not working for us. Unfortunately, in every field, in every trade, there are two kinds of people: those who have strong personal ethics which can withstand greedy impulses and those whose ethics and understanding of right from wrong are rather more “flexible”. To imagine otherwise, is to be both delusional and vulnerable to people like Erickson who looked so good on the outside and were so very rotten on the inside.




© 2012, Carole. All rights reserved.

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