Is it Surrogacy or Adoption and Does it Matter?

Dawn Davenport


adoption or surrogacy scandal

In all the coverage of the Erickson & Neiman surrogacy scandal, the media seems confused as to whether it’s adoption or surrogacy.

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

17/08/2011 | by Dawn Davenport | Categories: Adoption, Adoption Blog, Blog, Infertility, Infertility Blog | 19 Comments

19 Responses to Is it Surrogacy or Adoption and Does it Matter?

  1. Avatar Von says:

    None of the previous commentors have pointed out that of course it matters to the ‘gestational product’ and is about identity, of vital important to adoptees and to those created in other ways for the profits of an unethical industry.

    • Avatar Dawn says:

      Von, YES! Good point. I have pointed out someplace (thought it was on either this blog or the previous blog) that we can’t forget that the children were also the victims here.

  2. Avatar Kristina Grish says:

    i agree, i don’t think of them that way either–but i find this case v confusing! more than anything, though, i think it was sloppy producing on gma’s part, which is never ok!

  3. Avatar Kristina Grish says:

    i should have put “waste” in quotes. 😉

  4. Avatar Kristina Grish says:

    as someone who works in the media, my best guess is that producers are dumbing down the language as john says and, frankly, may not even know the difference between a/s in this scenario themselves. it’s a very complex case, and they probably didn’t want to waste two of their five minutes to explain the specifics. how ultimately confusing and unfortunate for everyone. ugh.

  5. Avatar Steven S. says:

    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

    • Avatar Dawn says:

      Steven, thank you for your articulate and thoughtful comment. The distinction of whether this criminal act is considered adoption fraud or surrogacy fraud may be a tomayto/tomahto type distinction. If the agreement had been signed before the embryos were transferred this would be called “surrogacy” and would be legal. If the agreement was signed after the embryos were transferred this arrangement would be called adoption, but the pregnant women would not have been able to be paid for their services of carrying the child. In this case, the women were recruited to be surrogates, the intended parents were told this was a surrogacy arrangement, and perhaps most important, the California courts were told this was a surrogacy arrangement. In truth, as you point out, this was a violation of both adoption and surrogacy laws, so I suppose it really doesn’t matter what shorthand the media uses to describe the story. I hear your larger point, however. Laws existed to prevent this from happening and these laws were broken. It is unfair to “blame” the legitimate practice of surrogacy for the bad acts of a few, just as it is unfair to blame banking for a bank robbery. Thank you again for your thought provoking comment.

  6. Avatar B D says:

    I know there are enough hurdles for donor-conceived children..How do you think this scandal will make egg donors feel? There is so much trust needed in 3rd party reproduction and this scandal has created fear and suspicion..As an egg donation advocate it is frustrating to hear stories like these because it stifles the progress we are making to help people understand third party reproduction. .I hope this scandal doesn t turn people off of egg donation sperm donation or surrogacy because it can be a great option for those who need it..

  7. Avatar Paula says:

    Thanks Dawn, it is a terrible situation and I feel for these women. I can now understand how they may have thought that it was ligitament deal.

  8. Avatar Paula says:

    Steve I am not a lawer but my first thought was that this is just people wanting to make a quick buck. And you clarified that for me, so thank you. It is a sad and terrible thing to sell babies but it happens and it shouldn’t. Does anyone know if the “surrogates” new about the whole scam? My guess would be yes they did… Surely they had to know something was a bit off when they never met the “intended parents” and were flown miles away.

    • Avatar Dawn says:

      Paula, the “surrogates” whose stories have been made public, did not know about the scam. In fact, it was a surrogate that brought the fraud to the attention of the FBI. Andrew Vorzimer, an attorney that represented some of the surrogates, wrote an interesting blog Criticism Of The Surrogates Caught Up In The Baby Selling Ring Is Unwarranted & Misplaced. I have read an interview with one of the surrogates where she said she thought it sounded strange, but the involvement of two of the top reproductive attorneys in the US gave her confidence that all was OK. She became particularly suspicious when they did not receive payment and their medical bills weren’t being paid and no intended parents were being found.

  9. Avatar Anonymous says:

    Ummm, because they went and created a baby for the sole purpose of selling it. HELLO! If you don’t see the wrong in that picture, you need some morals and values, quickly.

    • Avatar Dawn says:

      Anonymous, I don’t think anyone is saying that there is nothing wrong with what these criminals did. In fact, I think everyone who has commented, and certainly I am including myself, is horrified at what they did. Commodifying human life cheapens us all.

  10. Kristina, I guess you are right, but at least when I first thought of this, I don’t think of adoption and surrogacy as being that close. I have to admit that after I gave it more thought, I realized they were closer than I first acknowledged.

  11. Avatar Jessica says:

    I agree, Sam. (“Adoption has been demonized, deemed illegitimate, and trivialized…) And Dawn, thank you for calling attention to, and questioning, the way this story is being reported.

  12. Avatar Pat Johnston says:

    I agree with Sam on why the media is making the choice to call this an adoption scandal, but, really, this is neither adoption nor surrogacy. What it is is human trafficking–both the women involved and the babies they carried to birth were being “sold” for $100,000.

    Erickson and Neiman pulled it off by lying to the surrogates/gestational-carriers that they were following surrogacy law, then they lied to the courts in order to finalize these baby transfers as adoptions. I suspect that they realized that those considering surrogacy already expected to pay much more than would-be adoptive parents expect to pay.

    At the very least it’s time that every state pass laws that make it illegal for anyone to hang out a shingle offering services in either surrogacy or adoption unless that person has a professional license (which are regulated in each state) in a related medical, legal and mental health field and can demonstrated participation in related professionl groups and adherence to their standards about these matters. No more part time adoption attorneys, no more ob-gyns dabbling in surrogacy, no more “facilitators” in either field.

    This won’t happen without the lobbying assistance qand cooperation of physicians, attorneys, and mental health pros. The pros in these two related fields (adoption and surrogacy)–attorneys, physicians, mental health pros– should be working together to come up with clear standards–but standards that actually have teeth in them which would “punish” those that do not abide by them. Those standards need to address the training, licensing, participation in ASRM, AAAA and AARTA, and continuing education needs of those that head such businesses and the other licensed professionals working for them, plus covering standards making these directors responsible for training and continuing education (and potential standards violation) of any unlicensed people working within the business.

  13. Avatar John says:

    Its sad that we live in a society that appears to have a split personality. We on the one hand believe that all children deserve and should have a loving home. And yet we do not do our absolute best to ensure that happens in how the adoption process is portrayed. This is clearly a surrogacy issue, but in our society attempting to explain the difference between adoption and surrogacy would be too complicated for our media to do, so its dumbed down in order to sell the story, rather than be as accurate as humanly possible. Its sad.

  14. Avatar Sam says:

    My guess is the media is jumping to call it an adoption scandal because “adoption scandal” has become such a hot button phrase. Adoption has been demonized, deemed illegitimate, and trivialized in the media for so long that further scandalizing it not only gets viewer attention easily but it possibly makes the scandal more accessible or comfortable for the general public. Either way, it makes me angry. I realize that when it comes down to it, this scandal has elements that place it both tents, surrogacy and adoption. That said it really bothers me that this story is being used to bring about more misunderstanding about adoption.

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