The owner of a US surrogacy agency in Modesto pleaded not guilty on Monday to criminal charges of fraud and money laundering. Prosecutors allege she stole more than $2 million from clients who had paid money into trust for surrogacy fees and egg donation.
US authorities allege that the owner of SurroGenesis, Tonya Collins, encouraged clients to invest their money with a personal property escrow company which purported to be independent and that she concealed her ownership of the company and created fictitious staff identities to make it appear independent. Prosecutors allege that she then transferred client money to personal accounts to pay for a lavish lifestyle including holidays, homes and cars.
Judge Gary Austin is reported to have indicated that if found guilty, Ms Collins could face up to 20 years in prison and a $250,000 fine for mail fraud and wire fraud, up to 30 years in prison and a $1 million fine for bank fraud and 10 years in prison and a $250,000 fine for money laundering.
There are no centralized laws governing the practice of surrogacy in the US and this case follows on from the recent prosecution of an international baby-selling ring headed by a prominent former US surrogacy attorney. There is also no international harmonization of surrogacy law around the world, with each jurisdiction taking its own approach to surrogacy and this can create a legal quagmire for intended parents. Whilst such cases are unusual, it highlights the risks associated with assisted conception and brings into focus once again the importance for intended parents to vet the professionals they choose to work with and ensure they have a clear understanding of the legal framework and issues relevant to their family building plans.
Leading fertility magazine Fertility Road (April/May 2012) features an article of mine entitled “Surrogacy and the celebrity factor”.
Celebrity endorsement of surrogacy continues to capture public imagination and celebrity interest in surrogacy shows no sign of abating. Hollywood movie actress Elizabeth Banks has recently spoken poignantly and compellingly about her reasons for turning to surrogacy and the birth of her son.
Advances in fertility treatment have outstripped the law and this increasingly challenges traditional concepts of parenthood. For those who have struggled for years with infertility or never thought they could have a child, they can now conceive using a sperm donor, an egg donor, a surrogate (or a combination of these). This creates a key question: who is a parent?
Traditionally, parenthood followed biology. The woman who gave birth to the child was legal mother and her husband was the presumed legal father. However, it is now a far more complex question in assisted conception cases. As growing numbers of people embrace fertility treatment, cross borders, engage foreign surrogacy organizations and conceive with donor eggs and sperm the concept of parenthood can seem confusing and unclear. This challenges existing law and policy and has resulted in a a legal jigsaw puzzle that many struggle to make sense of.
Assisted reproduction and modern family structures challenge traditional notions of family. Increasing numbers of people are creating families through surrogacy, using a known donor who may have ongoing involvement with the family, through co-parenting arrangements or embracing family life as a solo parent. This raises questions about the legal status and role of the individuals involved and whether parenthood should be based on biology, intent, pregnancy and birth or social parenting.
The structures of modern families are changing and assisted reproductive technology is developing at a fast pace. The law has not kept pace with these developments and there needs to be greater understanding of the different pieces of the jigsaw that make up family building through assisted conception, sperm and egg donation and surrogacy. Only then, can we effectively tackle the question of parenthood and put effective law and policy in place.
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Infertility fears are increasingly common as more and more people think about their fertility and worry about starting a family. Infertility is a difficult issue and a diagnosis of infertility can affect you deeply.
Whilst some will take a proactive approach following a diagnosis of infertility, others will struggle to come to terms with this. Recent research shows that involuntary infertility has a big impact on self-esteem and emotional well-being in both men and women. Our sense of identity, our masculinity and femininity are linked to our fertility. People can find it difficult to discuss the problems they might have (or fear they might have) and it can put strain on relationships and affect performance at work.
For those people whose fertility levels do not improve through lifestyle changes, it may mean they will need to turn to assisted conception. Assisted conception can take many different forms, including IVF, ICSI, egg and sperm donation and surrogacy. The range of choice can seem overwhelming and it can be difficult to know where to start, or perhaps to reassess the situation if fertility treatment is unsuccessful.
If you are planning a family through fertility treatment or surrogacy it is equally important to get to grips with the legal issues so that you can ensure you properly protect your parental status and you can legally secure your family unit. Assisted conception, complex personal circumstances, an international dimension, donor conception, solo-parents, co-parents, same-sex parenting and known donation can all raise complex legal issues.
Resolution, the professional body for family lawyers in England, has just published a guide with which I collaborated entitled “The Modern Family (A Resolution Guide). I’m delighted to say it includes a chapter on assisted conception law, donor conception and surrogacy.
The guide deals with modern day families created through step-parenting, adoption, assisted conception, surrogacy, same-sex parenting and grandparenting. Its aim is not only to deal with the legal issues when families breakdown but to also strengthen modern families and family networks. The guide acknowledges the fast moving issues created by family fragmentation, reform, movement abroad and creation through assisted reproductive technology and provides a concise overview of the main issues and difficulties involved.
The Irish Minister for Justice, Equality and Defence has recently issued guidelines for Irish intended parents who enter into surrogacy arrangements abroad. Whilst any attempt to streamline the complex legal issues and problems associated with international surrogacy is to be welcomed, these guidelines are a far cry from a much needed root and branch overhaul of the fundamental legal treatment of international surrogacy arrangements in Ireland and the introduction of formal surrogacy legislation.
The new guidelines coincide with recent media coverage of an increasing number of foreign born surrogate babies left stranded abroad in circumstances where their Irish intended parents have no clear means of securing their safe passage home to Ireland after the birth. Whilst the guidelines do create a clearer pathway for Irish citizenship or emergency travel clearance to be granted to the surrogate born child if the intended father is an Irish citizen and biological father, this can still take many weeks or months to secure in circumstances where a DNA test and a raft of other paperwork and/or an Irish court order is also required.
The Irish surrogacy guidelines make no change to the legal position of the Irish intended mother who lacks legal status for the surrogate born child at birth. Irish law continues to regard the surrogate mother as the child’s legal mother by virtue of carrying the pregnancy and if married her husband as legal father (a position which is mirrored under English law).
Overall, the Irish surrogacy guidelines signify a need for greater legal certainty of the complex legal issues that surrogacy and assisted reproduction create. The guidelines mark a step forward but fall short of radical reform. The lack of a uniform approach to surrogacy law and practice around the world continues to create complex international conflicts of law and very real difficulties for intended parents and their surrogate born children alike. There needs to be rational international debate and consensus at its widest level about the nature and practice of surrogacy, payments, issues of enforceability and the associated international movement of children.
Despite a legal ban on surrogacy in France, the Court of Appeal in Rennes has recently upheld a previous ruling to give French civil status to twins born to a French couple following an Indian surrogate arrangement.
This ruling is in stark contrast to a separate case last year where the French Supreme Court denied civil status to twins born following a US surrogacy arrangement. The Court of Appeal’s recent decision in Rennes was made on the basis that although they could not validate the surrogacy agreement, they could grant the twins civil status relying on article 47 of the French civil code (even though similar arguments in the French Supreme Court were unsuccessful last year). This judgment placed the best interests of the twins at the heart of the decision, although it is still unclear if this marks a change in attitudes towards surrogacy law and practice in France as a whole.
International surrogacy arrangements continue to raise complex legal issues that challenge law and policy around the world. Many countries prohibit surrogacy or legally restrict the practice of surrogacy. International surrogacy arrangements often create complex international conflicts of law that can leave surrogate born children stateless with no citizenship anywhere in the world.
UK surrogate mother, Jill Hawkins, is pregnant again for a ninth time. Jill, a legal secretary from Brighton aged 47, is due to give birth to her ninth and tenth surrogate babies three weeks before her 48th birthday. Jill spoke of her pride of being a surrogate mother and how fulfilled she felt during pregnancy during a recent press interview.
Jill’s first seven surrogate babies are reported to have been conceived through artificial insemination using her own eggs and the intended father’s sperm. This time round, Jill conceived twins through IVF using the intended parents’ own embryos.
Jill is the most prolific surrogate mother in the UK, following Carole Horlock’s move to France after giving birth to twelve surrogate babies. Jill and I were interviewed about surrogacy law and practice on BBC Breakfast last year (January 2011).
Surrogacy is a restricted legal practice in the UK. There is a public policy restriction against commercial surrogacy and surrogacy contacts are not binding in law. The surrogate mother is treated in law as the child’s legal mother at birth (regardless of biology) and intended parents need to apply to court for a parental order to extinguish the legal status of their surrogate mother and obtain full legal parental status for their child.
Theresa Erickson, a former prominent Californian surrogacy lawyer, was last Friday sentenced to five months in prison, nine months home confinement, three years of supervised release and a $70,000 dollar fine plus restitution for her role as ring leader of what prosecutors termed an illegal international baby-selling ring. Her sentence follows the prison sentence that was delivered to her co-conspirator and Maryland lawyer, Hilary Neiman, last December. Carla Chambers, the third co-conspirator, also received five months in prison for her role and guilty plea to knowingly receiving money from an illegal enterprise.
The legacy of this case will create longstanding issues for the intended parents, surrogates and children involved. A point noted by the federal judge who stated that Erickson and her co-conspirators had tainted the birth stories of the children involved. Erickson acknowledged her wrongdoing in court and said she had lost her way.
The six year scam, which involved at least 12 fake surrogacy arrangements, stands as a stark reminder of what can happen when surrogacy and assisted reproduction goes wrong. US prosecutors delivered a statement in court stating that Erickson had been motivated by greed and that she had preyed upon people’s most basic need to have and raise a child, charging childless couples $100,000 or more to become intended parents and step into falsified ‘surrogacy arrangements’ where surrogates were already pregnant using donor embryo treatment in the Ukraine.
Assisted reproduction and surrogacy can offer hope to many people who are unable to have a child of their own. Surrogacy can deliver the reality of a much wanted child and family after years of personal heartbreak and upset. The actions of these individuals have, however, left their mark and raised questions about the control and regulation of assisted reproduction across the world and the role of the professionals involved. International surrogacy arrangements raise a number of complex legal and practical issues for intended parents and surrogates to get to grips with, in what remains an expanding and fast moving area of law and practice. This case shows that assisted reproduction and surrogacy is not without its risks and that great care is needed at all stages of the process.
Surrogacy is now a global reality and this brings significant challenges for intended parents, law and policy makers and lawyers in terms of managing the complex legal issues it creates. Surrogacy is a legal, albeit restricted practice in the UK. Surrogacy also has a unique character and identity of its own that is separate from other family building methods (including adoption).
Surrogacy is governed by assisted reproduction law in the UK, which often creates international conflicts of law when intended parents enter into surrogacy arrangements abroad. Surrogacy also has its own unique legal remedy in the UK, known as a parental order, marking it out from other mainstream areas of family law. Surrogacy, and particularly international surrogacy, is a rapidly evolving area of law and there are many legal issues and pitfalls as a result of the lack of international unification of surrogacy law and differing attitudes towards surrogacy around the world.
The International Family Law Practice (2nd Edition) features a chapter on surrogacy which I have co-authored with David Hodson, a Deputy District Judge of the Principal Registry of the Family Division and partner at The International Family Law Group LLP. Having pioneered the practice of fertility, surrogacy and parenting law in the UK and litigated the leading international surrogacy cases in the English family court, I was able to provide a valuable specialist contribution that traces the background and development of surrogacy law and practice in the UK. This major practitioner reference book provides comprehensive coverage of the international elements of English family law and marks the intersection of assisted reproduction and family law.