That People Are Still Confused About What Was Really Going On.
I have read a number of comments, blog posts, etc. (by some usually knowledgeable ART professionals) about the U.S.-Ukrainian baby-selling scheme that have misunderstood or misstated the facts. In order to fully appreciate the gravity of the case, we must first understand exactly what was happening.
Carla Chambers, years ago, worked as a surrogate for Theresa Erickson through Ms. Erickson’s surrogacy agency. Sometime after working with Ms. Erickson as a surrogate, Ms. Chambers was arrested in 2000 as she was trying to use fresh semen samples to impregnate women in New Zealand whom she had solicited through advertisements as “surrogates” who then traveled to California to deliver the babies. The babies, according to a concurrent newspaper report, were then adopted by U.S. parents. (Type or paste the following URL into your browser to read the original story: http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=139079.)
We do not know who the “Californian-based adoption attorney” who “masterminded” this previous scheme was those eleven years ago from this article, but this past scheme was obviously not Ms. Chambers’ idea. Thus, this new scheme isn’t Ms. Chambers’ first, and it is unlikely that this one was her idea, either. (We know it wasn’t Hilary Neiman’s idea because her plea agreement clearly states that she was solicited into the conspiracy three years after Ms. Erickson and Ms. Chambers had already started running it.) Ms. Chambers may or may not have been working with the same attorney in both schemes. We just don’t know. For federal investigation and prosecution purposes, these events are beyond the applicable statute of limitations.
The next scheme (of which we are aware) surfaces in this Ukrainian baby selling scheme. Here is how it worked. Just as in the first scheme, Ms. Chambers advertised for “surrogates.” When a woman contacted her in response to an ad, she would readily explain that she operated her surrogacy programs “differently.” She would then explain to each prospective recruit, in detail and before the recruit actually traveled for any embryo transfer, exactly what would happen. (Since I firmly believe that Ms. Chambers grossly misrepresented the actual facts when referring to these programs as “surrogacies,” I will refer to the women she recruited as what they actually were – “birth mothers” – not surrogates.) She told each of them, with the support and affirmation of Ms. Neiman, that the process was completely legal.
According to one of the birth mothers, the birth mother would be tested only for STDs once she was accepted. There would be no other psychological screening, education, legal consultation, or preparation of the birth mother for the process. If the birth mother had no STDs, Ms. Chambers would typically meet her and fly with her to the selected fertility clinic in the Ukraine, where Ms. Chambers told the birth mother the physician would transfer “donated” embryos to her uterus. (In fact, the embryos were custom-created by Ms. Chambers through the clinic with egg and sperm donors whom Ms. Chambers personally selected. The embryos weren’t really “donated” at all.) On more than one occasion, Ms. Chambers, who is well over 40 years old, would also have embryos transferred to her in an effort to become pregnant, as well. After several days, Ms. Chambers and the birth mother would fly back home, where the birth mother would wait for three months to determine whether she would successfully carry a pregnancy as a result of the embryo transfer. If the birth mother was pregnant, then, and only then, would the conspirators advertise for parents to receive the baby.
During recruitment, the birth mothers sometimes asked Ms. Chambers and her conspirators various questions. The birth mothers asked what would happen if no parents stepped forward to receive the baby. They were told that there was a long list of parents waiting to receive children, that that simply never happened, and that they should not be concerned about that possibility. (Let’s be clear here. If, indeed, parents weren’t found, the resulting children would be the birth mother’s children and sole legal responsibility.) The birth mothers asked who would pay for the medical expenses related to their pregnancy before they were matched. They were told that they should submit all bills through their own insurance companies as if it was their own pregnancy (which, in fact, it was at this point, I suppose).
If a birth mother successfully completed the first trimester, the conspirators would “advertise” for prospective parents to receive the child. (Type or paste the following URL into your browser to see a sample: http://www.babycrowd.com/forums/adoption/Caucasian_baby_USA_looking_for_suitable_parents_/. When prospective parents responded, they were told that the birth mother was a pregnant surrogate whose intended parents had backed out. They were also told that, for $100,000.00 or more, they could “step in” to this surrogacy and receive the baby who was already in gestation. At least a dozen sets of intended parents did so.
All of the birth mothers were told that they had to travel to California to deliver the baby. This gave the California courts jurisdiction over the parentage orders. Once the birth mothers gave birth in California, Ms. Erickson would knowingly and intentionally file false pleadings with the San Diego courts alleging the case was a surrogacy and seeking a prebirth parentage determination in favor of the prospective parents. Ms. Erickson would also knowingly and intentionally complete and submit false insurance application forms to obtain coverage for the hospital expenses incurred from the California Access for Infants and Mothers insurance program.
That Some Sources Claim Those Who Reported the Conspirators to the Authorities Were Self-Motivated.
I have heard rumblings from certain quarters that those who reported the conspirators’ activities to the authorities were “competitors” who sought to target Theresa Erickson out of self-interest simply to gain professional advantage. This could not be further from the truth. Again, let’s look at what actually happened.
I was sitting peacefully in my office at my desk when I received a call from another member of the ABA Assisted Reproductive Technology Committee, of which I am chair. This individual, who chooses to remain anonymous to this point, had been contacted by a prospective surrogate who asked questions about “another way” of becoming a “surrogate” mother. This prospective recruit then went on to describe the Ukrainian baby-selling scheme in detail to this other attorney.
The recruit not only described the baby-selling scheme, she forwarded volumes of emails to this attorney written between the recruit and Ms. Chambers in which Ms. Chambers also described the scheme and clearly named the other two persons involved – Ms. Erickson and Ms. Neiman. Ms. Erickson’s participation, in particular, alarmed this other attorney because Ms. Erickson was a very visible industry professional and an active member of our committee. The attorney, who believed the group’s activities were highly inappropriate, contacted me and forwarded to me all of the emails so I could assist this other attorney in determining an appropriate response to this information. This other attorney believed we should do something but did not know what to do.
After receiving this detailed information clearly implicating all three conspirators in the scheme, I spoke with the other attorney. I told this attorney that if my name came up in connection with questionable activity, I would want those involved to contact me personally to ask me directly to my face whether any allegations against me were true. Therefore, I told the other attorney that I was going to call Ms. Erickson and ask her personally about the scheme and her involvement in it, if any. The other attorney asked to be a silent participant in the call, so I called Ms. Erickson with the other attorney conferenced on the line.
When Ms. Erickson answered my call, I explained that information had come to me about a Ukrainian baby-selling scheme and that her name was clearly listed as the attorney who would do the parentage orders for the parents in California. I also explained that the emails were from Ms. Chambers, one of Ms. Erickson’s former surrogates. I told Ms. Erickson everything I knew, including that Ms. Chambers alleged that she was officing in Ms. Erickson’s office and that drugs were being sent to the prospective surrogates using Ms. Erickson’s office address. I clearly told Ms. Erickson that this scheme was inappropriate, if not illegal, and told her that if she was involved she should stop her activity immediately for the sake of the industry if not herself.
Ms. Erickson’s response to me was that she agreed that the scheme would be inappropriate but that she knew nothing about it and was not involved. She said that she had done one parentage order for Ms. Chambers, but it was a case in which there actually was a set of IPs who had backed out. She went on to say that if she knew Ms. Chambers was involved in such a scheme, she would immediately advise her to stop it. I asked for contact information for Ms. Chambers so I could also speak with her personally, which Ms. Erickson denied she had. I later asked Ms. Erickson to speak with Ms. Chambers and tell her to stop her activities. Ms. Erickson responded that she would “call” Ms. Chambers and do so.
After the call, the other attorney and I spoke. Beyond the inconsistent information about whether Ms. Erickson actually had contact information for Ms. Chambers, we agreed that there were other disconcerting inconsistencies in what she had told us. We agreed that there was a high likelihood that Ms. Erickson was lying to us about the scheme and her involvement.
A day or two after my call to Ms. Erickson, two emails were sent, one by Ms. Erickson and one by Ms. Chambers. Ms. Erickson’s was to me, essentially trying to encourage me not to mention her possible involvement in the scheme. It read as follows:
I just want you to be aware that I have made several phone calls and sent a few emails, and I would hope that solves some of the issues; however, at the same time, I would appreciate the professional courtesy of not implicating me in any way that may damage my reputation that I have worked so hard to develop and nurture, as I have done nothing wrong.
In fact, I have done the same for you many times despite things that have occurred, . . . and I would hope that any information that you discuss does not involve my name or create any innuendoes where they are not warranted. I understand that we are competitors; however, there is enough business for everyone, and I know that you understand how I do business.
(As you can see, Ms. Erickson was already creating the smoke-screen defense, which has now been adopted by her defenders, of “competitors” trying to wrongfully incriminate her for their own advantage.) Ms. Chambers’ email, which was forwarded to us by the prospective birth mother, was to every woman she had recruited as a “surrogate” in the scheme, and hers told them all to stop talking to anyone about the scheme because “some asshole attorney” was “sticking his nose” in their business. (I really took no offense, though.)
In light of the responses we received, the reporting attorney and I believed we could not do anything meaningful to stop the scheme. We did not have the authority or resources to investigate it, and we could not get the conspirators, through Ms. Erickson, to stop it of their own volition. The only option we had left was to report it to appropriate authorities.
In determining what to do, I continually referenced myself back to my professional obligation under the relevant rules of professional conduct governing me as an attorney. Those rules expressly state two things. First:
Maintaining The Integrity Of The Profession
Rule 8.4 Misconduct
It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;
(b) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects;
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
(d) engage in conduct that is prejudicial to the administration of justice;
Maintaining The Integrity Of The Profession
Rule 8.3 Reporting Professional Misconduct
(a) A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority.
(Please notice the “shall” in the above rule. It isn’t optional. We didn’t have a choice.)
In addition to our professional responsibility, both the reporting attorney and I personally believed we had a moral obligation to protect the women whom the conspirators were recruiting into their scheme, the parents who were fraudulently induced to illegally buy the children, and the resulting children, as well as the ART industry as a whole. We did not want this scheme to continue and later become public in a way that showed we, as the industry, knew about it yet did nothing to stop it. It was our responsibility to do something, no matter how uncomfortable or unpalatable it was.
We could have reported the scheme to either the relevant lawyer’s boards of professional responsibility or, if, as I believed, there was national and international fraud involved, to the FBI. Because there were two different responsibility boards involved (California for Ms. Erickson and Maryland for Ms. Neiman), there was the risk that the investigations would not be coordinated in either time or scope. This created a greater possibility that the conspirators could cover their tracks and deny responsibility. Those boards also could not do anything meaningful about Ms. Chambers’ involvement since she was not an attorney. Therefore, I decided we should go to the FBI to determine whether they would investigate the allegations based on the facts as I knew them.
When I contacted the Minnesota Bureau, the investigators were less than enthusiastic. Minnesota is not exactly an ART “hotspot,” and they viewed the conduct as originating in either California or Maryland. They told me to send a general inquiry addressed to their San Diego office and would not even give me a personal contact in that office. I was skeptical that such an inquiry would be successful, so I decided to contact Andy Vorzimer because he had worked with San Diego law enforcement in previous industry issues (i.e. – SurroGenesis and others).
When I contacted Andy, I learned that he had been contacted separately about the scheme by another ART attorney whom the surrogate had retained to represent her in connection with a pregnancy related to the scheme. We both agreed that it made sense for Andy to initiate contact with the appropriate authorities in San Diego to see if they would investigate the allegations. I thought that this was the most fair course of action since the FBI could investigate the scheme in a unified fashion on both coasts and would do so confidentially. In addition, the FBI would actually exonerate Ms. Erickson and the others if, indeed, there was no illegal activity going on. Unfortunately, there was, and the investigation and the conspirators’ subsequent guilty pleas irrefutably confirmed it.
All of the ART attorneys involved in identifying and reporting this matter are, indeed, Ms. Erickson’s competitors in some fashion. We all practice in the same area for the same potential clients. However, NONE of the attorneys were ill-motivated by that competition to Ms. Erickson’s personal detriment in reporting this matter. Frankly, there is plenty of business for all of us, and most of us practice in different areas of the country. We simply had an overriding ethical obligation that we could not professionally or personally ignore. If we had ignored the information that was, literally, thrust upon us, we would have become personally complicit in the scheme as much as the conspirators themselves.
I wish I had not been one of the persons in our industry who received this information. I wish I had not been one of the ones who had to decide what to do and whether to do it. But I was. When the story broke more than a week ago, I told someone, “I don’t know whether to be happy or sad.” I am happy that we were able to successfully police our own industry. I am happy for the future birth mothers, parents, and children who will never become involved. I am sad, however, for the conspirators, the poor decisions they made, and the very real and very appropriate consequences they face. I am sad for them and their families. I am sad that our area was subjected to yet more negative publicity and scrutiny. I hope this never happens again. The only way to make that more likely is to have reported it as we did and for Ms. Erickson, Ms. Chambers, and Ms. Neiman to be appropriately punished. It is called accountability and deterrence.
Shame on anyone who is out there whispering that Ms. Erickson and the others were simply the unfortunate objects of the envy and conspiracy of her peers. Those whispers are based on misinformation and are the mere mutterings of those who are biased and woefully uninformed. Mr. Vorzimer, I, and all the other ART attorneys who brought this to light (as a collective industry group and not as mean-spirited individuals) behaved ethically and did exactly what should have been done. The only unethical behavior was that of the conspirators, and they have only themselves to blame for their circumstances and consequences. Let’s put the accountability where it truly belongs.