Take Two: More About the LA Baby-Selling Operation

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.

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5 responses to “Take Two: More About the LA Baby-Selling Operation

  1. “(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.) ”

    Why not, they charge all kinds of enormous fees for facilitating an adoption. So long as the money was paid to erickson and not the carrier female then it would be like any other adoption on the surface. The difference being erickson would have paid the woman to be pregnant in the first place. But adoption does not get ones name on the original birth certificate which I imagine is what is worth 100K vs 50K.

    I dont think you missed anything some reports refer to her as offering the children for adoption

  2. Hypocrites. Not that we all cant be hypocrites here and there but really…the last post you said that it appears babies were produced for sale and you found that just disgusting. You realize that production for sale can mean either commissioned for a particular customer or manufactured with no particular customer in mind? A child commissioned for a couple is just as much produced for sale as a child manufactured for sale on prospect? Produced for sale is an interesting choice of words because the product we’re talking about is in fact a reproduction of two originals. The people who reproduce are of course producing their offspring for sale all you have to do is read the standard release forms and contracts where they receive valuable consideration in exchange for agreeing never to contact their offspring or challenge the maternity or paternity of the customer the commissioning couple or intended parent(s), I find all of it appalling of course but why would you? You think it is perfectly fine to pay a person to reproduce and abandon their child offspring progeny. You do think producing children for a fee is a perfectly great thing for people to do and you don’t have a problem with the doctors that act as greedy middle men in those arrangements do you? No you don’t what makes this woman any different why does her behavior disturb you? She wedged herself into a secondary middle man position to get her own slice of the pie. The egg and sperm donor are still producing children for sale even if there had been a legitimate contract with a commissioning couple. So Erickson was the commissioner BFD. For the gestational ladies to be innocent as you say they are then they would have to have had a contract with her right? So there was an intended parent and it was her. Either that or the women were told to lie to doctors and say the baby was for themselves in which case they are not so innocent are they? To me those women were always guilty of helping the egg and sperm donor commit the crime of producing a baby for sale even if Erickson never existed. Her role is so perriferal in all of this. The crime of producing children for money is being committed by the people who agree to reproduce for money. Everyone else is guilty as accessories as far as I’m concerned. The people who paid for the kid well maybe not so much them because from their angle its no different than having a gestational agreement under some other circumstance. I think they are guilty for being consumers of children produced for sale I think its monstrous of them.

    You know these poor kids. It is so so sad that the best place for them to be is with people that were willing to create their own orphan if they’d had a chance. But they bought a manufactured orphan. Gee that is so much better. I am so down with telling kids the truth but with donated embryos made from donated eggs and sperm and gestational carriers and sleazy interlopers like this Erickson lady, its difficult for me to bring myself to say they deserve to know the truth because its so horrific they are so far far removed from their own families. I know how incredibly hard it will be to find their mothers and fathers sisters and brothers, even for someone like me that’s really good at it it seems totally hopeless. Its so sad. What’s happening now is terribly sad. Poor lost little babies produced for sale. How could any of them. I don’t think what she did was any more outrageous than the perfectly legal aspects of art.

  3. “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.”

    Well, that’s interesting. Whether knowingly or unknowingly, they participated in a fraud and were allowed to convert from a PBO to an adoption.

    With the assistance of a surrogacy agency, my partner and I did gestational surrogacy the way it’s supposed to work in CA (for example, all the contracts were in place BEFORE our embryos were created). We have a PBO from a CA court. When our kids were about two, we decided that it might be wise to also complete an adoption. Courts across the country know and understand “adoption”, but not all courts know or understand PBOs. Because we now live in a conservative CA county, some poking around was done to determine how receptive the local family court would be to our request for an adoption. The reception was lukewarm at best and since it was unclear our adoption request would be granted we dropped the idea. The basic question was – “How can you adopt kids that are already legally yours?” We followed the law and simply wanted another secure way to protect our parental rights and were rebuffed. But the folks in this scheme played a role (knowingly or unknowingly) in a fraudulent scheme and were rewarded with an adoption decree. Did they have to complete a home study and the whole nine yards or was it viewed as a step parent adoption in which the requirements are far less? (We were going to be required to follow the entire, lengthy adoption process – even though one of us is the biological father and we are registered domestic partners.)

    • The law considers knowing participation in a fraud quite different from unwitting participation. Fraud is all about knowledge and deceit, so the knowledge of the various actors is critical. (Indeed, the victims are unwitting participants, in a way.) I think if prosecutors had thought the prospective IPs knew they were skirting the law the prosecutors might have charged them. But like the surrogates, the prospective IPs were probably lulled by reassurances that this was all okay provided by the high-profile, highly-respected lawyers. You really can trade on your reputation, and that’s what the lawyer defendants did.

      You’ve also identified an important difference between adoption and surrogacy–all states do have adoption and they understand it. They also generally understand that, like it or not, they have to respect out of state adoptions. (You could actually look at posting for Adar v. Smith, though, to see the extent to which states will resist the general practice. http://julieshapiro.wordpress.com/?s=Adar) But laws about surrogacy vary a great deal and in many states there’s nothing like a pre-birth order (PBO). Though there are excellent legal arguments that all states should recognize them (as with adoption) there’s more cause to worry about it, I think.

    • If you did gestational surrogacy and the PBO the way it is suppose to be done your partner who is maternally related to the baby your gestational carrier delivered would be named as mother instead of the woman who carried the baby. There is no reason to adopt a baby that you are both truly the parents of. That is why your names are on the birth certificate. Who would you adopt the baby from? The carrier woman? That makes no sense.

      If your partner is not really the mother then you should not have had a PBO. That is really only to establish a real biological relationship, read the links to the codes that govern pre-birth orders in California and you will see that. What Erickson did is set up a PBO when it should be an adoption, but the problem is there is nobody to adopt the baby from because the real parents of the child in question are anonymous, they abandoned the baby and the kid is essentially just a foundling. Maybe the adoptions of double donor kids should be handled that way.

      You said you handled it the way its suppose to be done, prior to the transfer, but there is no law about that. The pbo is plenty so long as your wife or partner or friend is the one who produced the egg she’s the mom. why adopt?

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