Later this week, San Diego surrogacy attorney Theresa Erickson will be sentenced for her part in what US prosecutors have called an international baby-selling ring. It is likely she will face a prison sentence, following her guilty plea to a wire fraud charge last August.
Ms Erickson was charged along with two others, a Maryland lawyer called Hilary Neiman and Carla Chambers, a nurse from Las Vegas. Ms Neiman was sentenced last December to one year in prison, being five months in custody and the rest under home confinement, for her part in the scheme.
The women recruited surrogates and sent them to the Ukraine where they conceived and then sourced intended parents for the unborn babies once the pregnancies were well established. Prosecutors alleged that the intended parents were falsely told that a previous surrogacy arrangement had fallen through and that they could step in for an alleged fee of $100,000 or more. It is further alleged that falsified court documents were then filed in the Californian court presenting the case as a surrogacy arrangement to obtain pre-birth orders for the intended parents. It is reported that the scheme involved at least 11 babies.
Ms Erickson was a successful and high profile US attorney who specialised in surrogacy law and who also owned a surrogacy and egg donation agency to help people become parents through surrogacy. She was herself an egg donor (resulting in the birth of twins) and a prominent commentator about surrogacy on television and radio. Her involvement in this scandal has sent shock waves through the assisted reproduction community and caused many to question her motivations and actions.
Under Californian law, intended parents must enter into a surrogacy contract with a surrogate before conception. The timing is critical. It is illegal for a woman who is already pregnant to agree to handover a baby to the intended intended parents for a fee and this is regarded as baby-selling.
The San Diego Superior Court has now tightened up its legal process and requirements to try and prevent any further cases of this nature. Whilst the vast majority of surrogacy arrangements are successful and follow due legal process, this scandal has attracted unwelcome headlines and coverage. It highlights the problems and pitfalls that can occur in an area of law and practice that lacks widespread unification or regulation. It also brings into focus the importance for intended parents to get a clear grasp of the legal issues from the outset and ensure that they have confidence in their lawyer and the other professionals with whom they work.
For those considering entering into an international surrogacy arrangement, it is important to tackle the legalities in their surrogacy destination country as well as their home country upon their return with their baby. As there is no international harmonization of surrogacy law, a Californian pre-birth order will not be automatically recognised in the UK and English law expects intended parents to apply to court for a parental order to secure legal parental rights for their child. International surrogacy arrangements raise a number of complex legal issues involving public policy and international legal conflicts of law which make any application for a parental order a significant legal exercise. This process can become even more complicated if any legal discrepencies or problems come to light along the way, such as the those highlighted in the alleged baby-selling ring.