Errata from the author: Thanks to Mark Demeray, President of the American Academy of Adoption Attorneys and Judith Sperling-Newton, Director of the American Academy of Assisted Reproductive Technology Attorneys for informing me that neither Theresa Erickson nor Hilary Neiman are, or have ever been, Fellows of their organizations. I regret having relied on a source that was in error.
Two prominent reproductive law attorneys, Theresa Erickson and Hilary Neiman, now await sentencing by a US district court after pleading guilty to charges connected with an elaborate surrogacy and baby-selling scheme.
The many headlines about this latest fertility industry scandal are clear on the nature of the criminal activities. NBC San Diego titled its early story “Lawyer Busted in Black-Market Baby Ring”; the Los Angeles Times called it a “scam”; the UK Telegraph ran with “Babies ‘sold for $150,000’ in California.” Even the FBI pulled no punches: Its press release is titled “Baby-Selling Ring Busted.”
The most complete account yet to appear in the mainstream media, by Julie Watson of Associated Press, appeared in dozens of outlets under the headline “Surrogacy Scandal Raises Question About Regulation.” The episode is also being closely examined discussed by several bloggers (1, 2, 3), one of whom posted Erickson’s plea agreement.
Erickson and Neiman are far from minor players in the fertility industry. According to adoption advocate Pat Irwin Johnston, they were members of the American Society of Reproductive Medicine and several of its committees, and of the invitation-only American Academy of Adoption Attorneys and American Academy of Assisted Reproductive Technology Attorneys. Erickson appeared frequently in the media and sat on the boards of several surrogacy consumer groups.
The baby-selling scheme that Erickson, Neiman, and a third woman named Carla Chambers put together spanned several states and two continents, and trampled on the minimal surrogacy regulations of California, where Erickson is based and where the surrogates were required to deliver the babies. While many countries and a number of states prohibit commercial surrogacy, California permits it; in fact, the state is known around the world as “surrogacy-friendly,” meaning that the rights of commissioning parents are robustly protected. For example, surrogacy lawyers routinely get “pre-birth orders” from California courts that exempt commissioning parents from the procedures that are part of adoption, and put their names rather than the surrogate’s on the baby’s birth certificate. California does require that a surrogacy contract be in place before a surrogate is impregnated and before a pre-birth order is issued, provisions designed precisely to prevent baby-selling.
But Erickson and Neiman didn’t let that stop them. Relying on their reputations as credentialed and internationally-renowned members of the fertility industry, they recruited surrogates from across the US and sent them off to fertility doctors in the Ukraine, who were either unaware of or unconcerned about the absence of contracts and identified intended parents. The surrogates, who say they were duped into thinking that everything was legitimate, were impregnated with embryos made from anonymously-provided eggs and sperm.
The baby entrepreneurs waited until the pregnancies were in their second trimester, past the greatest danger of miscarriage, and then advertised for people willing to pay up to $150,000 — significantly higher than the going rate for legal commercial surrogacy — for a baby that they could claim soon. In other words, as the FBI press release put it, they “create[d] an inventory of unborn babies that they would sell for over $100,000 each.”
Erickson began the baby-selling scam in 2005; it ended only because of the FBI investigation that exposed it. Here’s an excerpt from an ad that Neiman placed on an online adoption forum in 2009:
Caucasian Infant, as embryos used where [sic] caucasian, however gestational carrier is of colour. Carrier is in Nebraska however birth will occur in California! … names of new parents names [sic] will be put on the birth certificate, no adoption neccesary, [sic] no homestudy needed! The minute the baby is born, parents will have 100% custody!
The trio told interested parties that the babies were available because another set of parents had backed out of a surrogacy arrangement at the last minute. To sweeten the deal, they could specify the baby’s sex, since that’s easy to determine in the second trimester.
So the two prominent fertility law experts lied both to surrogates and to prospective parents, and perhaps to the Ukrainian fertility doctors and gamete providers. The legal case against them, though, centers on the lies they told California courts and public agencies. According to the FBI press release, Erickson “fraudulently submitted false declarations and pleadings to the California Superior Court in San Diego, in order to obtain pre-birth judgments establishing parental rights for Intended Parents.”
And she topped up the profits by defrauding California’s program for uninsured pregnant women. As the FBI put it, she “caused applications containing materially false representations to be submitted to the State of California’s Access for Infants and Mothers program to subsidize the medical expenses for delivering the babies.”
Not surprisingly, the surrogacy field has been rocked by the scandal. A few players are acknowledging that rules of the road are needed. Circle Surrogacy founder and president John Weltman, for example, writes:
We need to establish … standards as a profession, have a licensing and review board to monitor practitioners and censor, suspend or revoke those who do not stay within those established guidelines.
But as Diane Allen of Canada’s Infertility Network points out, there have so far been no statements at all from the fertility industry’s professional organization, the American Society for Reproductive Medicine, or from infertility groups that are typically sanguine about surrogacy, such as Resolve, the American Fertility Association, and the International Council on Infertility Information Dissemination. Many questions about the baby-selling scandal remain unanswered. How did the perpetrators get away with it for years, when many others in the field must have known about or at least suspected what they were doing? What sentences will the court impose in October, and what will Erickson and Neiman do afterward? What will be the effects on the babies who were conceived from anonymous gamete providers in order to be sold, and on their families? And perhaps most importantly, what measures will be taken by the fertility industry, policy makers, women’s health advocates and others to ensure the well-being of everyone involved with assisted reproduction practices? We, and hopefully many others, will be closely following the unfolding events.