While I was travelling the LA Times ran a major story on the baby-selling ring I’ve been blogging about. (You can read earlier posts or the LA Times for the basic facts. I will not repeat them here.) It adds both detail and texture to the story (that’s journalism for you), so it’s worth taking a few more moments to see what is added and/or what is changed.
First, though, one thing that strikes me that has really been there all along, but I haven’t commented on it: the crimes charged. Both lawyers (that’s Theresa Erickson and Hilary Neiman) were charged with wire fraud and Carla Chambers was charged with a similarly generic monetary crime. No one was charged with baby-selling, which for all I know isn’t even a federal offense. This isn’t really so unusual–remember that Al Capone was convicted of tax evasion? It makes sense to charge something you can easily prove and, in the present case, proving that false documents were prepared and sent was doubtless going to be the easiest path. Still, it is worth noting, I think, that the lawyers’ crimes in particular are tied to fraud and deception.
The first to be deceived were the women who thought they became surrogates. The women identified in the article were told that intended parents (IPs) would be located after their pregnancies were established. It seems that at least one of the women (Melissa Todd–featured in the story) was suspicious about this. She sought reassurance from the defendant lawyers, who used their prominence in the field as a tool of deception.
Certainly Todd would have been right to be suspicious as this was where the shadowy part of the whole scheme really began. What the defendants here were doing wasn’t surrogacy at all.
I understand that many people find surrogacy disturbing. You have only to look at the extensive discussions here to see that and also to see that I have my own concerns with the practice. But before terms get flung around here, it’s important to understand that they do actually have agreed upon meanings. Just because the defendants called what they were doing surrogacy doesn’t mean that it was surrogacy. In fact, describing the process as surrogacy was part of the fraud. It was a lie. For better or worse, the essence of surrogacy is that an arrangement is made between surrogate and IPs before the surrogate becomes pregnant. She then becomes pregnant for the IPs.
If a woman becomes pregnant in the absence of any pre-existing surrogacy agreement there is no doubt that she will be a legal mother upon the birth of the child. (The law governing parental rights in cases where the agreement is in place first is complicated and varied and so I’m not going there right now.) If she then agrees to give up legal parental rights in exchange for money, she has sold a child.
What this means is that order is critical: If the agreement precedes the embryo transfer it is surrogacy. If it does not, then it is adoption. Women can be paid as surrogates but cannot be paid to give up their children for adoption. (Notice that the surrogates had to give birth in California so that the defendants could avoid any court scrutiny, because a judge would have identified the problem in an instant.)
I suspect this seems highly technical to people–just the kind of distinction lawyers revel in and other people abhor. But it is where we have drawn a line. There’s a whole conversation to be had about whether it is sensible place to draw a line. Sometime soon I’m happy to discuss again whether it’s okay to pay where the agreement comes first. But the key thing here is that EVERYONE AGREES that it is not okay where there is no agreement before the pregnancy and it is quite clear that that’s what was going on here.
One last note for now–the ring fell apart because Todd went to a lawyer and eventually found her way to Andrew Vorzimer of The Spin Doctor Blog. The two of them went to the FBI and that was the beginning of the end. Hat’s off to Vorzimer on this one.