I’m confused. I just finished listening to the Good Morning America segment on the surrogacy baby selling scandal involving two well-known reproductive law attorneys, Thersa Erickson and Hilary Neiman. In the GMA piece, they referred to it as an adoption scandal and only mentioned the word “surrogate” once. So, is it an adoption scandal or a surrogacy scandal? Does this distinction matter?
What is the legal difference between a surrogate and a birthmother?
Under California law, if the gestational carrier (surrogate) and the intended parents have a signed surrogacy agreement prior to the embryonic transfer, then the arrangement is surrogacy, and the intended parents can obtain a pre-birth order which allows their to be on the original birth certificate. They are considered to be the child’s only parent and have full parental rights at the moment of birth. If there is no signed surrogacy agreement prior to the transfer of the embryos, then the arrangement is an adoption, not surrogacy. This is more than a distinction in name only. Gestational carriers are allowed to be paid for their services. The surrogates in this scandal were being paid up to $40,000 plus all medical expenses. Birth mothers in adoption can only receive reimbursement for medical cost and reasonable living expenses. In other words, surrogacy pays, adoption doesn’t.
Is this scandal adoption or surrogacy?
According to the court documents, the way this scandal worked was that the defendants (Erickson and Neiman) sent “gestational carriers” (i.e. surrogates) to Ukraine to have embryos that had been created using donor egg and sperm transferred into their uterus. After a successful pregnancy was established, they “shopped” these pregnancies around looking for prospective parents. The intended parents were told that these were legitimate surrogacy arrangements where the original intended parents backed out, and they were being offered the opportunity to step into the original agreement. Erickson then submitted false surrogacy documents to the California court representing that there was a signed surrogacy contract before the embryo(s) were transferred. So, in fact, these were actually adoptions being disguised as surrogacy. I suppose this makes this mess a surrogacy scandal, rather than an adoption scandal, but does it really matter? In essence is the only distinction when an agreement is reached? Is it all about the money? What about the emotional component? And why would someone agree to pay $100,000 to $180,000 to adopt a baby? (I know the answer to that one—desperation!) And why is the media so fixated on calling this an adoption scandal? Image credit: katybird