The Today Show ran the story this morning about the baby-selling scheme in which Theresa Erickson, Carla Chambers, and Hilary Neiman have entered guilty pleas.
I am an attorney who has practiced Assisted Reproductive Technology (ART) law for more than twenty years, and I am actively involved in legislative and advocacy issues in ART both nationally and internationally. Here is my initial professional perspective in my effort to help others to properly characterize and focus this story.
Although Ms. Chambers did get the women involved as birth mothers pregnant through embryo transfer (a form of ART), this does not make the women involved “gestational surrogates” or make this story about “surrogacy.” The women involved were birth mothers, just as in adoption, and the story is about selling babies in violation of adoption laws, not about surrogacy.
Surrogacy is an arrangement in which prospective intended parents enter into an agreement with a third-party who agrees to carry a pregnancy to term for the benefit of the intended parents. The agreement exists BEFORE the pregnancy.
In this case, there was no agreement of any kind before the pregnancies were created. This was simply IVF with an embryo transfer to an intended birth mother. It is no different than if the women had become pregnant through intercourse and then tried to sell their babies. It has nothing to do with surrogacy. It has to do with the clear violation of existing adoption laws.
If various quarters of the media or individuals attempt to point to this matter as motivation for regulation of surrogacy or fertility medicine to avoid such cases in the future, the answer is that surrogacy/fertility regulation would have nothing to do with the case at hand. There were (and are) numerous laws and regulations already in existence that clearly prohibit and make illegal the conduct in which these conspirators engaged. It is illegal in California (the governing jurisdiction) to claim an arrangement is a surrogacy unless there is an agreement in place before the pregnancy. Where a pregnancy is not the result of a surrogacy agreement, it is illegal to pay and receive money for (sell) a baby. There are federal laws prohibiting false and fraudulent claims to be made across state lines in an effort to profit from baby selling. There could have been no more (or more relevant) law in place to prevent what happened in this case.
There are also numerous FDA regulations and ASRM guidelines that would prevent the medical procedures that took place from occurring in the U.S. FDA regulations would have required additional medical testing of the gamete donors/embryo recipients who provided the sperm/eggs to the physicians who performed the embryo transfers. They also would have required much more complete screening of the birth mother, including a psychological evaluation and, hopefully, a legal clearance letter regarding a prior written agreement among the parties. The medical procedures could not have occurred in the U.S. as they did in the Ukraine. This is exactly why the conspirators flew these women thousands of miles to another country with a more “relaxed” medical environment for the embryo transfers. This case is not about “better regulation.”
This case is about criminal mentality. The people involved simply wanted to ignore (i.e. – break) the law, and they willfully did so. This group, each of them, wanted to profit from illegal activity, did not think they would get caught, and ignored numerous already-existing laws. They could just as easily have been embezzlers or bank robbers. Their mentality is not distinguishable, and their culpability is no less. You can pass a law prohibiting certain behavior, but you cannot prevent people from ignoring the law. You simply cannot legislate against individual bad acts, and that is what we have here.
Please don’t characterize, refer to, or discuss this as a case involving surrogacy. It isn’t.
Steven H. Snyder, Esq.