Thanks to surrogates, thousands of people have become parents. Each arrangement takes into account a swirl of complex details: whose genetic material will be implanted in the surrogate; how it will be transferred; where the surrogate — should she get pregnant — will give birth; how much she will be paid for her role in carrying another couple’s child.
It also presumes that a contract will be in place before a surrogate is impregnated. But now, two noted fertility attorneys and a surrogacy coordinator have apparently broken that rule, asking women to become pregnant first, and then finding adoptive parents later.
It’s a money-making scheme that’s been described in court as a “baby-selling ring,” which had brokered deals for at least 12 unwitting couples before being dismantled by the FBI. According to the Los Angeles Times, Theresa Erickson, a noted San Diego fertility attorney, and Maryland attorney Hilary Neiman, who is well-known in surrogacy circles, were charged with wire fraud; the coordinator, Carla Chambers, was charged with “monetary transactions in property derived from illegal activity.” All three pleaded guilty over the last few weeks in federal court. They have yet to be sentenced.
Court documents lay out a plan that Erickson and Chambers came up with six years ago, before including Neiman in 2008: the women would arrange for surrogates to fly to Ukraine to be impregnated with donor embryos. When the surrogates were about 12 weeks along, the babies would be offered to prospective parents. Once a couple was found, Erickson would file a document in a California court, fraudulently claiming that the surrogacy agreement was in place from the start.
The scam was discovered when one of the surrogates, who was nearly six months pregnant, got nervous that she hadn’t yet been officially paired with adoptive parents. She called an attorney, who called the FBI.
“Creating babies on purpose for specific people is seen as less risky because you know where that child is going if it all plays out well,” says Julie Shapiro, a law professor at Seattle University who blogs regularly about how the law defines the concept of family. “The idea that we create children and then essentially shop them around is morally quite different and unacceptable, and I think that’s why the order matters so much.”
Prospective parents approached by the defendants were told that the surrogates’ previously arranged agreements had fallen apart. They learned that they could enter into a new agreement with the surrogate for between $100,000 to $150,000, which is on the upper end of typical surrogacy costs. It sounded like a tempting proposition, offering couples “a surrogate well into her pregnancy, after the greatest risk of miscarriage had passed,” according to the L.A. Times. “It would even be possible to choose the sex of a child. In addition, the babies were white — a condition set by many U.S. couples that makes it difficult for them to adopt.”
The surrogates were promised $38,000 in payment, considerably more than the going rate. “What a lot of people are really worried about is this is terrible for surrogacy,” says Shapiro. “It looks awful. No doctor in the U.S. would do this without seeing a surrogacy agreement. It’s a bit like building a house on spec.”
Erickson, a former egg donor herself, had forged a name for herself as a widely respected legal expert, who drew up contracts for donors, would-be parents and surrogates. I quoted her in July in a Healthland article about the debate surrounding anonymity for sperm and egg donors. “Opening up completely is just not going to work,” she said. “There are a lot of men and women that just don’t want their information out there.”
Erickson also spoke candidly about how she doesn’t view children conceived with her donor eggs as her own: “If those children walked up to my door and said, ‘Hey, Mom,’ I’d say, ‘We have to talk.’”
Nonetheless, she told me she remains in contact with at least one couple who used an egg of hers. They contact Erickson each year near her birthday, sending videos of their daughter playing the violin, Erickson says, “like she should be in a symphony.” She’s convinced the girl’s musical ability comes from her. “My son is 19 and he picked up the guitar two years ago and is a virtuoso,” she says.
Beginning when the younger of her two children turned 1, Erickson donated eggs more than 20 times, partially to make money while she was in law school but also because she liked the idea of helping another family have children. “I got so hooked on it,” she says. “If a couple didn’t get pregnant with my eggs, I would be upset.”
At the time, she acknowledged some of the potential pitfalls of helping others build families, either through gamete donation or surrogacy. “I have been contacted by parents of triplets who are about 17 because they saw me on the Today Show years ago and figured out who I was,” says Erickson. “I was shocked at first. I was a little scared. I didn’t sign up for this.”