A couple of days ago I blogged about a baby-selling ring that involved a well-known San Diego attorney, Theresa Erickson. The story hit the news when she pled guilty to conspiracy charges. Since then I’ve had an on-going e-mail conversation with Andrew Vorzimer, who blogs as Spin Doctor. (He’s got his own post up about the case and he also posted the actual plea agreement.)
He’s a very knowledgable guy in general but he has particular familiarity with the facts of this case. So for starters, I want to restate the version of the facts I offered with a few corrections.
I got the first part right–the surrogates (who were US citizens) were sent to the Ukraine to have embryos transferred. There were no intended parents at this point. One of the defendants selected the sperm and the eggs, looking to create designer babies for whom there would be high demand. Recruiting for surrogates was done over the internet, as is common.
Once the surrogates were back in the states, the defendants would look for “buyers”–which is to say, prospective parents. (The surrogates were required to give birth in California, because the law there was favorable.) Contrary to my earlier account, prospective parents weren’t told an adoption had fallen through, but rather that (non-existent) intended parents had backed out of a surrogacy arrangement. Essentially they were offered the chance to step-in as new intended parents–for a price. (If I’d thought about it, I would have seen that it had to be that way–because you couldn’t charge $100,000 for an adoption.) The defendants then prepared fraudulent papers that resulted in pre-birth orders being issued for the newly identified intended parents. And that was that.
Now one key thing is that this wasn’t really surrogacy at all. It is a scam based on the practice of surrogacy. The fact that you can construct a scam around something doesn’t really tell you much about the nature or quality of the underlying activity. You can build a scam around totally legitimate businesses–as long as you are willing to lie, as these defendants apparently were.
The hallmark of surrogacy is that the agreement between the IP and surrogate is made at the outset–before anyone is pregnant. You cannot fudge this part and still have it be surrogacy. (There’s a lot to think about here and I may come back to it another time.)
There’s a serious implication here that I wondered about last time–what is the parental status of the people who thought they were intended parents? The orders the defendants obtained confirming their status as parents were obtained by fraud on the court and are therefore worthless. Vorzimer told me the answer: at some point after the scheme started to fall apart, the families completed adoptions, which properly confirmed the parental rights. Additionally, the duped intended parents and the equally duped surrogates were granted immunity from prosecution. (This is undoubtedly a large part of what lead to the guilty pleas.)
The real question to me is what is the take-away. It’s hard to say. People motivated by greed (and not sufficiently governed by ethical or moral principles) will find ways to exploit the law? There are people who really want children and will pay a great deal for a child? Surrogates and intended parents are vulnerable, probably to each other, but more importantly here, to the manipulations of unscrupulous operators in the middle?
I’m relieved to know that the families involved here have been protected, but the story still saddens me. I don’t know any of the people involved personally, but Theresa Erickson is a well-known figure in the area of law I follow. She was high-profile–often quoted in the media, on the radio, that sort of thing. Surely she knows–as we all know–that surrogacy is a controversial topic. There are important conversations we need to have–conversations about the legal status of IPs and of surrogates, about globalization and the potential race to the bottom, about good vs. bad surrogacy practices. The conversation Erickson’s started here doesn’t help with any of those.
It’s all too easy to over-react to the wrongful conduct on display here. I don’t mean to suggest that I think the criminal charges were unwarranted, but rather that it’s too easy to say that because this is bad (and it is bad) all surrogacy is bad. Just as the notorious case of Nadya Suleman didn’t tell us everything we needed to know about IVF, this doesn’t tell us everything we need to know about surrogacy.