Take Three? LA Times Weighs In On Baby-Selling Ring: Drawing Lines

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.

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4 responses to “Take Three? LA Times Weighs In On Baby-Selling Ring: Drawing Lines

  1. Fraud? Against whom? For what? What law did she break? There is no California code that discusses the terms of an agreement for traditional surrogacy or gestational carrying. What are you talking about when you say the crux of Erickson’s crime was that there were no “intended parents” when the embryos were transferred? What is an “intended parent” according to California law? Why are you saying that no Clinic in the US would implant an embryo in a woman without proof of a surrogacy agreement with intended parents?

    Clearly there is no law against someone buying sperm or eggs without intending to raise the resulting offspring. This is obviously what Erickson did and what thousands of fertility doctors and corporations like Xypex do all the time. And just look at all the excess embryos being sold and donated all over the place. Snowflakes I think is the marketing term for it, the people that paid to have them made don’t have to raise the resulting children – whose regulating that manufacturing nightmare? Oh nobody. That’s right nobody at those clinics is making sure the people who buy the eggs the sperm and the embryos are going to raise the babies themselves. There is no law saying a clinic has to do any such thing and how could they even hope to monitor that with all the medical privacy crap people invoke in the name of pretending to be parents to someone elses child. I think your way off base in suggesting American clinics are so much more ethical than Ukranian clinics. Is there really a law that would allow a judge to force people to go through with raising the baby they paid someone else to give birth to? A law that says you must take on the parental obligations for a baby that is not related to you that you did not give birth to? No, there is not.

    Is there a cap on what an adoption facilitator can charge for their services? No. There is not.

    Is there a cap on what a fertility lawyer can charge for their services? No. there is not.

    Is there a cap on what a gestational carrier can charge for her services? No. There is not

    Traditional surrogacy? No, that is not allowed in California, because its baby selling but you can lie and call it gestational carrying and nobody will check the DNA because of privacy. You can keep the kid and sneak your ass onto the birth certificate as long as the mother goes along with the program and hands her baby over. That’s cherry fraud right there, but nobody is going to look at that.

    I looked and found several lawyers websites that say this about gestational carrying arrangements:

    “In California, where there is a gestational surrogacy arrangement, the intended parents are the legal parents. Calvert v. Johnson, 5 Cal.4th 84 (1993). In fact, the intended parents will be the legal parents, even where there is no written agreement. In re Marriage of Buzzanca, 61 Cal.App.4th 1410, 72 Cal.Rptr.2d 280 (1998). The parents can obtain a pre-birth order under California’s Uniform Parentage Act, which provides that such actions may be brought “at any time.” Cal. Fam. Code §§ 7630, 7650.”

    http://www.leginfo.ca.gov/cgi-bin/waisgate?WAISdocID=60999920195+0+0+0&WAISaction=retrieve
    http://www.leginfo.ca.gov/cgi-bin/waisgate?WAISdocID=61056123144+1+0+0&WAISaction=retrieve
    http://www.leginfo.ca.gov/cgi-bin/waisgate?WAISdocID=61056123144+2+0+0&WAISaction=retrieve
    http://www.leginfo.ca.gov/cgi-bin/waisgate?WAISdocID=61051922935+0+0+0&WAISaction=retrieve

    and this about traditional surrogacy arrangements:

    “In California, where there is a traditional surrogacy arrangement, the biological father and the surrogate mother will be the legal parents. In re Marriage of Moschetta, 25 Cal.App.4th 1218, 30 Cal.Rptr.2d 893 (1994). Thus, adoption is necessary for the intended mother to establish her rights”

    You know what I think? I think the fraud, was against the State of California for lying about the biological relationship between the new intended parents and the baby to be delivered. I think she’s probably gotten away with it for a long time with egg donor babies when it should be handled as an adoption. I think she was not paying the carriers fast enough and they busted her out because of money. I also think lawyers are scrambling to make what Erickson did be different from what they do.

    And about setting the women up to receive State assistance while pregnant. All gestational carriers are on welfare and State medical care that is one thing that IPs look for in a carrier so they won’t have to pay medical bills, its par for the course and is not illegal although again its shady as hell.

    Sure she was aiding people in (re) producing to create babies for sale! But she did not do anything illegal except possibly abuse the pre-birth order by naming people who were not related to the baby being gestated. Had they been related and not drawn up their contract until after the transfer it would not matter because they are related and they ARE the parents. I think the pre-birth order rules are loose enough for her to wiggle out of this. She did nothing wrong officially. Whats wrong is we need to change the law to make selling sperm and eggs useless – make people responsible for their own offspring no matter what and make people not responsible for children they deliver if they are not related.

    Teal Dear. Teal Dear.

    • Fraud is lying and there’s lying all over this case. Perhaps most importantly for the prosecution, the lawyers presented false documents to the court–documents that deliberately mistated the order of things. That’s pretty clearly fraud. They also mistated significant facts to both the surrogates (they told them the procedure was legal) and the IPs (they told them there had been an earlier surrogacy arrangment, or perhaps an adoption plan, that had fallen through.) I think they may also have lied about the genetic materials used to create the pre-embryos. So there’s plenty of deceit and surely fraud on the court. For a lawyer, that’s a fairly appalling thing to do.

      The other main point I wanted to make that if you change the order of the events, you change the propriety of the agreement. I’ve tried to explain why that is. I understand it may appear arbitrary–I think that’s a good point. But it is the line we have drawn.

      Of course, there probably are doctors who would participate with the scheme here, just as there are unscrupulous people in all professions. It would, I suspect, endanger your license to practice medicine though.

  2. I think the The Spin Doctor post explains what the lie actually was in the paperwork that she filed with the court:

    “Theresa would then file false documentation with the Superior Court in San Diego, stating that she was the attorney representing the parents-to-be and would verify that this couple had created this pregnancy.”
    ———————————–
    There is nothing about timing there. She filed papers that said her clients created the pregnancy currently being carried by another woman. Does not matter whether they had a written contract or not, if Erickson’s client’s own fertilized egg was in some other chick’s body she has every right to be named mother of her own baby at birth. And the whole pre-birth order is based on Calvert v Johnson where a gestational carrier tried to take off with some couple’s baby just because she gave birth to it, they won because they were related to the baby not because they bought some sperm and eggs. People that have been using the pre-birth order for babies made from purchased genes have been lying to the State to get named on the baby’s birth certificates and she got popped because she did not pay quick enough she got popped and the clients had to adopt like they should have from the get go. “In California, where there is a gestational surrogacy arrangement, the intended parents are the legal parents. Calvert v. Johnson, 5 Cal.4th 84 (1993). In fact, the intended parents will be the legal parents, even where there is no written agreement. In re Marriage of Buzzanca, 61 Cal.App.4th 1410, 72 Cal.Rptr.2d 280 (1998). The parents can obtain a pre-birth order under California’s Uniform Parentage Act, which provides that such actions may be brought “at any time.” Cal. Fam. Code §§ 7630, 7650.”by the gestational ladies she hired. They are the couple that created the pregnancy.

    What disturbs me is that all the lawyers seem to be glossing over the daily ongoing fraud of filing pre-birth orders for intended parents who are not related to the baby being delivered by the GC. If you are not related to a baby you get parental rights by adopting in a court of law, not by lying on a pre-birth order and saying your the natural parent just because you know they won’t ask for proof. That is appalling and weaselly. Erickson found the new legal route to black market adoption. The hallmark of black market adoptions is the ability to get your name on that original certificate to erase any evidence that the child is not genetically related to you and or your partner. Black market adoptions cost alot because breaking the law is risky. She took the risk.

    • I’d say it is all about timing. If the agreement had been made first, then you could have honestly reported that and you’d be fine. Because the agreement was made after the pregnancy began, it was necessary to lie to gain court approval.

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