Victims and Vulnerability: Another Look at What Is Wrong With Baby-Selling

The recent baby selling case that featured guilty pleas by a couple of prominent lawyers is still reverberating around the internet.  There’s lots of interesting commentary and some newer news coverage.   (It’s worth following Spin Doctor as its author, Andrew Vorzimer, is a lawyer who has worked in the field and also represents one of the surrogates who has cooperated with federal prosecutors.)

Once you get outside the realm of legal and policy analysis (both of which are extremely important) there’s a lot out there about the betrayal of trust manifested in the case.   Much of this is at a general level–the attorneys involved were prominent in the field and well-respected and they used their status to further their ends, to the detriment not only of individuals directly involved but also to the detriment of other professionals who work in the same field.    But for once, rather than take that macro view, I wanted to think more specifically about the victims in the case and the vulnerabilities that the defendants exploited. 

So who are the victims and what made them vulnerable?  I see three potential categories of victim:  the surrogates, the intended parents and the children.   In each case, it’s a little more complicated than it might appear.

The way the story played out, its clear that some of the surrogates were victims of this scheme.   Particularly once they were pregnant, they were very vulnerable.   But it seems to me that when the scheme worked smoothly, this vulnerability wasn’t exploited.   In those cases the surrogates were well compensated–much better than the ordinary going rate, I think.   And they weren’t left without medical care or with a baby they hadn’t wanted.

Perhaps the problem here is that since the babies were essentially being created on spec there were bound to be instances where it didn’t all go well and in those instances, the surrogates were likely to suffer.   (The stories profiled in the LA Times show some ways things could go wrong.)

I suppose there are two things that made the surrogates vulnerable:  first, their initial need for money.  While I understand that there is often an altruistic component to surrogacy, the money is also important.   And here the money was especially good.  (I’ve written before about the issue with over-paying, so I won’t repeat myself here.)   The second vulnerability arose once the women were pregnant.

Next let’s consider the intended parents.   Like everyone else they were lied to.  And, as this story makes clear, they were lied to in sigificant and important ways.   Further, the legal process they went through (getting pre-birth orders) was a sham–the papers were fraudulent.   But in the grander scheme of things they primarily got what they paid for.   If they had been told the truth there’s no saying they would have turned the deal down.   This makes me a little ambivalent about their status as victims.

What made them vulnerable?  The desire to have a  child.   In this sense, it’s the same vulnerability many people face–where they have deep needs and someone unscrupulous comes along offering to fill those needs in exchange for money.   Could be a miracle cure for a disease or the ability to contact the dead.

And the children.  Are they victims?  This seems to me quite slippery.  They are not victims in the sense that the children sold in other cases I’ve talked about are.   Those children were taken from their families and relocated to new families.   I cannot say the same for the children here.   In the instances where all went smoothly, the children ended up in families that wanted them.  They were basically like most children born of surrogacy arrangements.    (Of course, in the instances where it didn’t go well, you cannot say that.)

I go through all of this to figure out what was really wrong with the scheme.  Was it that there would be inevitable cases where parents could not be found for the already created children, and in those inevitable cases, both the surrogates and the children suffered?  Or is there something else?


6 responses to “Victims and Vulnerability: Another Look at What Is Wrong With Baby-Selling

  1. Ha! I am finding examples on surrogacy websites that say what she was doing getting unrelated people on the birth certificate with a pre-birth order WAS THE FRAUD the non-biology is the fraud! Thank goodness and everyone is spinning this Erickson story another way. Tsk Tsk
    “Whether a prebirth parentage order is available and appropriate in any particular surrogacy case depends on several factors. Primary among them, however, is the fact that adoption proceedings are historically intended and reserved only for postbirth establishment of parental relationships between children who have already been born and adults who are otherwise legally and genetically unrelated to them. Thus, seeking a prebirth parentage order in either a traditional surrogacy or a gestational surrogacy using a donor where one or both intended parents are genetically unrelated to the child and a postbirth adoption proceeding of some sort is required seems procedurally inappropriate. On the other hand, seeking such an order in a gestational surrogacy using the intended parent’s egg and sperm are genetically related to the child and can establish their legal rights in a single paternity/maternity proceeding seems procedurally appropriate.”

    These lawyers have been banking on medical privacy making it impossible for the State to know if they are lying about being related to the baby the gestational carrier is carrying. The state has to take it on faith. In this instance the truth was told to the state and something had to be done about it not being true and so the babies were adopted by the people raising them. Note that Julie, Andrew said they had to adopt them. If they had been related to the babies their action to prove that they are the real parents could have been brought at any time, it says so in the links to the code governing prebirth orders they can be brought in absence of any agreement and be brought at any time. But you have to be related otherwise you have to adopt.

    So fertility lawyers can SAY that this is about a lack of a proper contract prior to embryo transfer. They can SAY its about the unscrupulous Ukranian clinic or profiteering by Erickson. If I were her I’d be pissed off that all my colleagues who do the same thing every day all day long were not defending my credibility. If we don’t like what she did we need to change the law that prevents the State from requiring DNA to put names on a birth certificate.

  2. so what you’re saying Julie is that there are no real victims in this case because:
    1. the surrogates got paid (and well)
    2. the parents got what they wanted (white babies of the preferred gender)
    3. the kids (though violently denied any knowledge of their natural family whatsoever) were put in (random and un-screened) homes with parents that “wanted” them (i.e. paid for them).

    Never mind the human-trafficking element.

    The more Theresa Ericksons we have out there, the more the value and dignity of life everywhere is undermined.

    • Close, but not exactly. The way it actually worked out, there clearly are victims–surrogates who were really left out on a limb, for example.

      But I did mean to raise a bigger question. Imagine the sheme worked flawlessly–the surrogates get paid well, the IPs get the kids they were told they were going to get. What specific harms can we identify? Who is hurt? Where are the victims and what is their injury?

      The objections you’ve raised are valid ones and must be considered as one considers surrogacy and/or ART generally. But they are objections you would raise (I think?) to all surrogacy (and indeed, all use of third-party gametes). That being the case these objections don’t tell us what is wrong with this particular scheme. And yet this scheme has been singled out as wrong-doing in a state where surrogacy (for better or worse) is permitted.

      What i was trying to get at is that it seems to me hard to articulate the specific harms caused by the defendants’ scheme that wouldn’t be caused by all surrogacy. It seems harm to identify the victims and what injury they have suffered. (I’m not saying it isn’ there, by the way, just that I haven’t been able to put my finger on it for now.) I think this ties back to the distinctions we draw between surrogacy and adoption. I think something’s going on here that blurs the lines.

    • Another brief point I forgot. I have seen this described as a case of human trafficking. If you think about it that way, which humans are trafficked and when? Is it the surrogates going to/from Ukraine? I don’t think it quite fits the definition of trafficking. Is it the implanted embryos? That’s a tough sell, too, for different reasons. So where exactly is there trafficking?

  3. angry intended parent

    Also victims in this are the people, like me, who were represented by her outside of the baby-selling ring case, in process with a surrogacy, and left in the lurch. No one from her firm even contacted me to say she couldn’t represent us anymore. The surrogacy firm she used to own, of which her husband is now CEO, has severely dropped its level of service. Those of us in process are praying for healthy babies and wondering what we could have done, or still can do, to deal with our anger over the situation and recoup our losses if we can.

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