Prominent Reproductive Law Attorney Speaks Out About U.S./Ukrainian Baby-Selling Scheme

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Prominent Reproductive Law Attorney Speaks Out About U.S./Ukrainian Baby-Selling Scheme

By Andrew Vorzimer ⋅ August 12, 2011 ⋅

Filed Under AAARTA, aba, American Bar Assocation, baby, baby selling, baby trafficking, Carla Chambers, criminal, FBI, Hillary Neiman, human trafficking, indictment, Plea Agreement, Steven Snyder, Surrogacy, surrogate agency, surrogates, Theresa Erickson, Ukraine, United States Attorney, United States District Court, victims

Earlier this afternoon I shared a link to the statement made by the American Academy of Assisted Reproductive Technology Attorneys. In my post, I took some umbrage at the almost mealy-mouthed denunciation of the activities by AAARTA.

Compare that with the statement just released by attorney Steven Snyder and copied below. As you will see, Steve pulls no punches. While speaking as an individual attorney and not in his capacity as Chair of the ABA Assisted Reproductive Technology Committee, Steve offers the kind of stinging rebuke that I believe is essential to address the very legitimate concerns raised by this criminal scandal.

Moreover, Steve has given me authorization to also acknowledge his role in the take down of this baby-selling ring. Steve was one of the attorneys that reached out to me and the FBI 13 months ago having learned of what was taking place in the Ukraine and the United States. Having run into obstacles with law enforcement in Minnesota, Steve enlisted my help in assisting the victims of this conspiracy. Steve and the other two attorneys (who have declined to make their role known at this time) deserve our enduring gratitude for their vigilance, courage and adherence to the ethical standards we expect of our colleagues in this profession.

Steve’s statement:

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. (steve@snyderlawfirm.com)

Discussion

17 comments for “Prominent Reproductive Law Attorney Speaks Out About U.S./Ukrainian Baby-Selling Scheme”

Marna Gatlin – PVED

Steve –

From a GC perspective, these women entered into agreements to be carriers (surrogates) because they truly believed they were matched.

They entered into these agreements (from what I understand) as GC’s and that’s truly what they thought. I don’t think any of them viewed themselves as birth mothers adopting children. They were duped, betrayed, and led down a path of deception when they thought they were doing something good, loving, and generous for another couple.

The GC’s in question did not know there were not any agreements or matches did they?

Andy? What do you weigh in on this?
- Andrew Vorzimer
  
  Hi Marna,
  
  They were showed an inventory of waiting Intended Parents before they proceeded with any embryo transfer. They were told that under the program’s protocols, they would not receive a contract or be formally matched until the end of the first trimester. They were given other “official” looking agreements, though not with an Intended Parent(s). When they questioned this extremely unusual policy, they were told to speak to their attorneys who reassured them that this was a legally appropriate method to operate. In retrospect, I think they will all acknowledge that they should not have accepted that representation and the red flags should have caused them to flee. Yet, in the moment, they felt reassured given the stature of the attorneys providing the advice.
  - Ella Janes
    
    i feel so much for these poor women! I cannot understand though that they thought they were surrogates without IPs and that they allowed themselves to fly 5000 miles away to go through a transfer for IPs that they were not matched with and wouldn’t until the end of the first trimester? Although these ladies believed they were surrogates, they were not really. They were pregnant for non existent IPs and it should have had many red flags flying. Its the babies that i feel bad for. They never asked to be born and they have ended up god only knows where. Im sure they have gone to good homes, but really, this is NOT surrogacy, it is baby selling for adoption.
Pat Irwin Johnston

In just what states is INTENTIONAL birthparenthood a legal and ethical form of adoption? I don’t think so!
Marna Gatlin – Parents Via Egg Donation

Andy – Is it usual and customary for a GC not to receive a contract before an embryo transfer? And yes I can understand why they would have felt reassured.
- Andrew Vorzimer
  
  Marna, it is unheard of in the United States for a Gestational Carrier not to receive (and sign) a contract prior to commencement of medication, let alone an embryo transfer. There are a number of reasons for this, as you know. First, no self-respecting medical clinic would allow a GC to begin medication until they received legal clearance. Secondly, no ethical attorney representing a GC would ever allow his or her client to proceed with an IVF cycle without a written contract in place to address all the contingencies. Thirdly, no attorney for an Intended Parent would ever allow their client to proceed with an IVF cycle until a contract was executed, the risks assumed and all details agreed upon in writing.
  
  Now the rules and regulations in foreign countries are much different than those found here in the United States. In addition to the cost savings of performing the procedures in the Ukraine came the ability to proceed with an arrangement that would otherwise not be allowed to occur in the United States. Again, it bears reiterating, that the presence of Erickson and Neiman as “independent counsel” for both the Intended Parents and Gestational Carriers was the essential element to convince these Surrogates that their arrangements, while different than those found in the States, were nevertheless legal and appropriate.
  - Andrew Vorzimer
    
    Pat, I cannot agree with you more and not sure where I have ever said anything to the contrary. These arrangements were neither surrogacy nor adoptions. This was a baby selling ring that exploited surrogacy laws to circumvent adoption rules.
  - CONCERNEDSURRO
    
    Something to add:
    
    No one I know would ever NOT sign an agreement to put any foreign object into their body (medications). The surro who does that puts herself at risk. What happens if the medications cause complications? A miscarriage occurs? Who pays? No reasonably-minded surrogate would put themselves in this position unless there were huge benefits to doing so. IMO, there are NO benefits to risking your life and that of your family’s for someone else (especially if you have no idea who the AP’s even are!) to have a baby without signing a contract outlining ALL of each persons responsibilities. Furthermore, most IP’s want to know something about their surrogate. As a surrogate, I would be very suspicious of going to another country to transfer embryos. In fact, I made it clear that I would NOT travel outside the US to do a med screen or transfer embryos…Funny, I was told by HN’s office that I would have to be willing to do this. I didn’t match with their agency. If I were an IP, I’d find it suspicious that I had an “anonymous” surrogate. WHO DOES THAT? it’s like hiring a babysitter you have not checked up on or met with before securing care for your children. It’s called CYA, cover your a$s! I have said it a few times: What happened in these cases had nothing to do with “surrogacy” it was an illegal adoption scam.
Pat Irwin Johnston

Andy, I say again, it is not reasonable to throw these from the surrogacy arena to the adoption arena. It is not legal in any state for a “birthparent” to be paid for anything more than her living expenses during a pregnancy. These cases do NOT belong to the adoption world!
Pat Irwin Johnston

This comment from Steve throws it to adoption (while still saying it is illegal.)

“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.
”

This case is neither about adoption NOR surrogacy. It is about human trafficking (both of women and of children), pure and simple!!
- Andrew Vorzimer
  
  You and I agree Pat. I suspect Steve will correct himself once he realizes his mistake.
Concerned

Mr Vorzimer, could Ms Neiman’s current claims be credible (to her contacts) that she’ll just get a fine and some community service based on her guilt plea agreement with the FBI? I realize you don’t have a crystal ball for the sentencing judge’s decision, but what action could be taken to have her disbarred or at least her professional license revoked?
- Andrew Vorzimer
  
  Please call me Andy.
  
  It is hard to speculate because there are still some moving parts, but I would suspect that Ms. Neiman will likely be able to serve her sentence under home confinement. As far as her law law license, I would be surprised if Ms. Neiman was not subjected to disciplinary action in Maryland.
Pat Irwin Johnston

So, Andy, it could be that both Erickson and Neiman will retain their law licenses?

This has been plea bargained in a way that does not automatically disbar them? The “crime” is not a felony? Or does a felony not automatically disbar someone?

I’m not an attorney (I am just surrounded by them in my family–gr-grandfather, grandfather, niece, nephew, cousins, son now in law school) =)
- Andrew Vorzimer
  
  Hi Pat,
  
  I responded to your inquiry in a reply to Marna’s comment. However, one other thing to keep in mind which is slightly off topic is that these criminal defendants received downward departures under the federal sentencing guidelines because of their early acceptance of responsibility. Given a couple of the public statements we have seen so far, which seemingly backtrack from that acceptance of responsibility, the Judge might seek to impose a more draconian sentence than currently set forth in the Plea Agreement. I know a number of criminal defense attorneys were quite surprised that one defendant was allowed to make Facebook statement which showed neither remorse nor complete acceptance of wrongdoing.
Marna Gatlin

Pat-

Wire fraud is a felony offense under federal law. The penalty can be 20 years imprisonment. However, where the victim of the wire fraud was a financial institution (eg, bank), the sentence is enhanced. In these cases, the sentence can be 30 years in federal prison.

My guess is because Hilary and Theresa were officers I’d the court (Andy help me out here with definitions) they both will be disbarred and maybe permanently.
- Andrew Vorzimer
  
  Given that these offenses involved moral turpitude, I suspect that these attorneys will be disbarred. Exacerbating matters even further is, as the Plea Agreement acknowledges, the defendants were involved in submitting materially false declarations and pleadings to the San Diego Superior Court. Lastly, the Plea Agreement also outlines the charges of insurance fraud through the submission of falisified insurance applications to California’s Access For Infants and Mothers (AIM) insurance program. Given all these factors, I would be surprised if the lawyers were not disbarred. By the way, here is the pertinent California Business and Professions Code sections dealing with disbarment:
  
  6101. (a) Conviction of a felony or misdemeanor, involving moral turpitude, constitutes a cause for disbarment or suspension.
  
  In any proceeding, whether under this article or otherwise, to disbar or suspend an attorney on account of that conviction, the record of conviction shall be conclusive evidence of guilt of the crime of which he or she has been convicted.
  
  (b) The district attorney, city attorney, or other prosecuting agency shall notify the Office of the State Bar of California of the pendency of an action against an attorney charging a felony or misdemeanor immediately upon obtaining information that the defendant is an attorney. The notice shall identify the attorney and describe the crimes charged and the alleged facts. The prosecuting agency shall also notify the clerk of the court in which the action is pending that the defendant is an attorney, and the clerk shall record prominently in the file that the defendant is an attorney.
  
  (c) The clerk of the court in which an attorney is convicted of a crime shall, within 48 hours after the conviction, transmit a certified copy of the record of conviction to the Office of the State Bar. Within five days of receipt, the Office of the State Bar shall transmit the record of any conviction which involves or may involve moral turpitude to the Supreme Court with such other records and information as may be appropriate to establish the Supreme Court’s jurisdiction. The State Bar of California may procure and transmit the record of conviction to the Supreme Court when the clerk has not done so or when the conviction was had in a court other than a court of this state.
  
  (d) The proceedings to disbar or suspend an attorney on account of such a conviction shall be undertaken by the Supreme Court pursuant to the procedure provided in this section and Section 6102, upon the receipt of the certified copy of the record of conviction.
  
  (e) A plea or verdict of guilty, an acceptance of a nolo contendere plea, or a conviction after a plea of nolo contendere is deemed to be a conviction within the meaning of those sections.
  
  6102. (a) Upon the receipt of the certified copy of the record of conviction, if it appears therefrom that the crime of which the attorney was convicted involved, or that there is probable cause to believe that it involved, moral turpitude or is a felony under the laws of California, the United States, or any state or territory thereof, the Supreme Court shall suspend the attorney until the time for appeal has elapsed, if no appeal has been taken, or until the judgment of conviction has been affirmed on appeal, or has otherwise become final, and until the further order of the court. Upon its own motion or upon good cause shown, the court may decline to impose, or may set aside, the suspension when it appears to be in the interest of justice to do so, with due regard being given to maintaining the
  integrity of, and confidence in, the profession.
  
  (b) For the purposes of this section, a crime is a felony under the law of California if it is declared to be so specifically or by subdivision (a) of Section 17 of the Penal Code, unless it is charged as a misdemeanor pursuant to paragraph (4) or (5) of subdivision (b) of Section 17 of the Penal Code, irrespective of whether in a particular case the crime may be considered a misdemeanor as a result of postconviction proceedings, including proceedings resulting in punishment or probation set forth in paragraph (1) or (3) of subdivision (b) of Section 17 of the Penal Code.
  
  (c) After the judgment of conviction of an offense specified in subdivision (a) has become final or, irrespective of any subsequent order under Section 1203.4 of the Penal Code or similar statutory provision, an order granting probation has been made suspending the imposition of sentence, the Supreme Court shall summarily disbar the attorney if the offense is a felony under the laws of California, the United States, or any state or territory thereof, and an element of the offense is the specific intent to deceive, defraud, steal, or make or suborn a false statement, or involved moral turpitude.
  
  (d) For purposes of this section, a conviction under the laws of another state or territory of the United States shall be deemed a felony if:
  
  (1) The judgment or conviction was entered as a felony irrespective of any subsequent order suspending sentence or granting probation and irrespective of whether the crime may be considered a misdemeanor as a result of postconviction proceedings.
  
  (2) The elements of the offense for which the member was convicted would constitute a felony under the laws of the State of California at the time the offense was committed.
  
  (e) Except as provided in subdivision (c), if after adequate notice and opportunity to be heard (which hearing shall not be had until the judgment of conviction has become final or, irrespective of any subsequent order under Section 1203.4 of the Penal Code, an order granting probation has been made suspending the imposition of sentence), the court finds that the crime of which the attorney was convicted, or the circumstances of its commission, involved moral turpitude, it shall enter an order disbarring the attorney or suspending him or her from practice for a limited time, according to the gravity of the crime and the circumstances of the case; otherwise it shall dismiss the proceedings. In determining the extent of the discipline to be imposed in a proceeding pursuant to this article, any prior discipline imposed upon the attorney may be considered.
  
  (f) The court may refer the proceedings or any part thereof or issue therein, including the nature or extent of discipline, to the State Bar for hearing, report, and recommendation.
  
  (g) The record of the proceedings resulting in the conviction, including a transcript of the testimony therein, may be received in evidence.
  
  (h) The Supreme Court shall prescribe rules for the practice and procedure in proceedings conducted pursuant to this section and Section 6101.
  
  (i) The other provisions of this article providing a procedure for the disbarment or suspension of an attorney do not apply to proceedings pursuant to this section and Section 6101, unless expressly made applicable.
  
  6106. The commission of any act involving moral turpitude, dishonesty or corruption, whether the act is committed in the course of his relations as an attorney or otherwise, and whether the act is a felony or misdemeanor or not, constitutes a cause for disbarment or suspension.
  
  If the act constitutes a felony or misdemeanor, conviction thereof in a criminal proceeding is not a condition precedent to disbarment or suspension from practice therefor.
  
  By the way, it bears noting that there have no allegations of impropriety extending to the employees of these attorneys’ law firms and surrogacy agencies. They too are victims in this and I’m saddened to think about how their lives will be forever impacted by this scandal.

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