Another Perspective On The Baby Trafficking Scandal

Pat Irwin Johnston is one of the country’s preeminent advocates in the field of infertility and adoption. This morning, Pat weighs in with her thoughts and I will add a few of my own at the end:

But of course, every now and then we hear about domestic or international baby selling cases or ethical or legal charges against a provider of surrogacy services. What made this case different? Both of the attorneys involved here were as “credentialed” as they currently could be—members of the American Society of Reproductive Medicine and several of its committees, members of the invitation-only American Academy of Adoption Attorneys and American Academy of Reproductive Law Attorneys, and thus, in an unregulated industry, seen to be “trustworthy.” Their stellar credentials meant that one had a highly respected radio talk show on family building, had self published two books, and sat on the boards of several grassroots consumer groups in the field.

Because I have spent the career from which I am about to retire as an educator of and advocate for consumers of these services, some key factors in my own reaction:

I have been an advocate of tighter professional regulation of most alternatives (adoption, collaborative reproduction), which has been soundly rejected by physicians and attorneys who claim they regulate themselves. That didn’t work well this time—for at least five years. The non-attorney involved works as do dozens of people in many states as an intermediary or facilitator of services (in this case surrogacy, but it happens in many states in adoption, too) forming in companies which, in the cases of adoption “look like” state licensed agencies.) In fact these are for profit companies which, in far too many cases, are run by and staffed by completely untrained, unlicensed, unregulated people. In too many states it is absolutely legal for anyone at all to hang a shingle without licensure or oversight of any kind. This case, for me, is an example of why full licensure, training, mandatory continuing education and government oversight of all working professionally to connect would-be parents with family-building alternatives should be mandatory.

There has been a “plea bargain” for the three conspirators. I feel that the community, personal and professional, surrounding challenged family building would have greatly benefitted from a trial in which these conspirators would have had to explain their tactics and their motivations. Instead, the lead attorney immediately posted (and then removed) a statement that “all would be explained” and claims to have been victimized herself. Scuttlebutt in the community has it that it is her intention, after she loses her law license, to go back into the surrogacy field through her “agency” and/or as a consultant.

Then there was the fact that those in the surrogacy professional community initially insisted that this scandal was not an example of surrogacy law gone awry at all, but instead was carried out under violated adoption law. Tossing the case to the adoption arena angered adoptive parents and adoption pros and advocates like me, because the biggest legal distinctions between adoption and commercial surrogacy involve the differences in how and when money can be exchanged. In adoption, birthparents are not allowed to receive any payment for making an adoption plan anywhere—in any state. Adoptive parents are usually expected to pay medical and perhaps counseling expenses, and in some states (but not all) they are allowed to contribute to reimbursing modest living expenses during pregnancy, but all expenses are very specific and are carefully examined by courts as an adoption. There is no such thing as being “paid” to become a birthmother. On the other hand, in most states, but not all, surrogacy allows a woman to contract with a couple (intended parents or IPs) to be paid–as if this nine months were a job–to carry and birth an embryo created from the sperm and egg of specific IPs (these surrogates are often referred to as gestational carriers since the IPs are the genetic parents of the child) or allows a woman to contract ahead of time to be paid by intended parents to carry and birth a child being created from donated egg and IP’s sperm or donated sperm. In the case of this scandal, several US women were recruited to become surrogates. They were then impregnated with donated sperm and egg in Ukraine without having signed the required pre-implantation surrogacy contract with any IPs and then the attorneys lied to the court in order to claim that these women were birthparents making adoption plans for their babies. It took way too long for professionals not most often involved in adoption to “get” that in all aspects this was illegal as an adoption as well as illegal as a surrogacy case and was, in fact, HUMAN TRAFFICKING plain and simple—victimizing women and selling babies!

The competitive nature of the infertility portion of this field results in neither professionals nor most of the consumer-run support and advocacy groups working well together. This means that they share little information between them and so not only is information about competency and ethics of professionals not shared, but also their strength and potential clout is splintered among several so-called “national organizations” who compete for limited resources (funding, membership, professional support, etc.) and who depend too much on the professionals in the field for their money and their leadership. Why encourage or allow professionals as leaders of consumer groups? Because this seems to be the only way to gain respect FROM professionals and professional organizations, which, as a whole have little respect for the grassroots volunteers trying to mobilize, educate and support consumers. In some cases well-informed, well-connected and fearless advocates are even seen as the enemy. Indeed, first myself and eventually several other consumer-professional volunteers were actually one at a time thrown off of a national board for which we had each volunteered for many years and each had chaired when blatant lies were spread by an executive director actually maneuvered into being hired by a drug company wanting to get control of that grassroots organization.

The competitive nature of the professionals in this community means that there is a great deal of transmitted gossip about one another, but very little in the way of reporting their bad apples to the professional organizations, let alone the legal authorities. In the current case, several pros are now claiming that they knew the participants were going to be “brought down” for years, yet it was not until two of the baby carriers contacted two attorneys in the field that authorities were alerted. Really these two attorneys could legitimately be called heroes in how they quickly took these victimized women’s stories to the FBI, yet now there are underground rumblings among other pros in a dysfunctional rumor mill about how these guys—as competitors of the attorneys who have pled guilty—stood much to gain by turning in their competitors. HUH?

There have been scandals with doctors, clinics, agencies and attorneys here and there throughout my volunteer and professional lifetime in the broad field of challenged family building and its alternatives. Three have stood out as particularly egregious to me—primarily because in each case the “professionals” linked to them were so well known and seen to be above reproach and because multiple “professionals” were involved. One involved the misuse of embryos by a prestigious west coast clinic. Another surfaced after the bankruptcy of a non-Russia-approved intermediary of adoptions from Russia who was “working for” over three dozen agencies across the country. The third is this human trafficking case. All three operated for quite a while before being exposed.

They tell me that John Weltman of Circle Surrogacy is right (http://www.circlesurrogacy.com/en/surrogacy-news-events/surrogacy-latest-news/item/185-message-from-john) when he writes,

“So this is a time for us to think amongst ourselves on how to improve our standards and make sure that we don’t allow those who vary from those standards to get away with it. We need to establish those 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.”

Those who want families but are challenged by their infertility, their genetic conditions, the sexual orientation or their single status are vulnerable in their sometimes desperate search to have what the majority of adults take very much for granted: the ability to start or expand a family without jumping through hoops, proving themselves to outsiders, or paying fees far beyond insurance-covered maternity benefits. These families deserve to know that those of us who are volunteering on their behalf and those of us making a living at their expense advocate transparency and playing by carefully established rules and that all of us have ZERO TOLERANCE for those who do not share these standards.

I don’t want to hear another word of gossip. I think any advocate or pro who hears anything questionable owes it to his or her own members or clients to make immediate contact with the person he’s heard about to inform them about what is circulating and to directly suggest that they address the possible misinformation with a public statement.

I largely agree with everything Pat has written. However, just a couple of observations:

1. What has gone unreported is that Ms. Erickson was confronted about these allegations more than a year ago by a concerned attorney in this field. She denied them and, based upon the Plea Agreement, continued to operate the baby trafficking ring with her co-conspirators for an additional 8 months.

2. I also have a nit with Pat’s opinion that the competitive nature of this industry may have indirectly allowed this criminal enterprise to avoid exposure. If anything, the collegial nature of this field is likely the biggest culprit as many could not believe prominent colleagues would engage in such abhorrent activities. Reproductive law attorneys work with their “competitors” on a daily basis given the unique relationship that exists between Agency, Donor, Surrogate and Intended Parents. In any given week, an ART attorney will have to work cooperatively with “competitors” who will be representing the other side in assisted reproductive arrangements. It is commonplace for an attorney (who also operates an agency) to refer either their Intended Parents or Surrogates/Egg Donors to a “competitor” for independent representation. While I do agree there is much bickering and turf fighting between the different disciplines, within the ART legal community, there are very few adversarial relationships. If anything, this collaborative environment may have bred a mindset in which practitioners simply could not believe that a colleague could behave in such a fashion.

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