Let me warn you from the outset, this post will be different than most. It will be more of a rambling, stream of consciousness vent on my part than any update on the law that many of you have come to expect from this blog.
So I have to concede that I have been struggling with mixed emotions over the news regarding Tonya Collins indictment. Undeniably it is good news. Equally indisputable is that the 30 felony counts appropriately reflects the severity of her conduct and any resulting sentence, if convicted, will see Ms. Collins serve a long and well-deserved jail sentence.
For the victims, I am happy as Collins will be held to account for her indefensible actions. But I cannot help but feel in some respects this is a Pyrrhic victory. Yes, Tonya Collins will be punished for her conduct. Quite possibly there will be some ability to recover a small portion of the funds that were embezzled by way of a victims’ restitution award.
But how many of these victims have forever lost their chance to have a baby? Over the years, I have been fortunate to get to know many of these SurroGenesis victims on a personal level. Several I am honored to count as friends. And while Collins’ arrest and indictment was long sought-after, it can not change the inescapable fact that many of her victims have been forever deprived of the ability to become parents. Tonya Collins did more than just embezzle $3,000,000 dollars. She robbed these individuals and couples of their dreams of having a family.
In my first year of law school, during one of my first criminal law classes, my professor asked: What are the theories of punishment in the criminal justice system? They were simple enough for us to rattle off in response: deterrence, incapacitation, retribution, restitution and rehabilitation. And, as students, we would debate for hours in our academic ivory tower the advantages and disadvantages of each. But at the end of the day, they speak to punishment. Not justice. Yet that critical distinction really has only sunk in over the past few days.
I guess it took 27 years for me after that class to realize that the objective in our criminal system is not necessarily to find justice. Which brings me back to where this rambling blog post began. I feel for my friends who will never have a chance to hold their baby or experience the unadulterated joy that a child can bring to their lives. Tonya Collins did more than steal their money. She deprived them of their dreams and no number of felony counts or decades in jail can ever replace that.
Yes, Tonya Collins will be held to account. Defaults were already taken against Collins, SurroGenesis and Jack Kiserow in the civil class action lawsuit (though there were no assets available to recover). My former clients might ultimately recover a very small portion of their monies that were stolen. There will be a deterrent effect that will hopefully lead to fewer similar scandals going forward. Collins will likely spend a significant portion of her life in a federal penitentiary and those that she stole from can take solace in the fact that a severe punishment will be meted out.
But there will be no restorative justice. There simply is no way for our criminal justice system to right the wrong that has been perpetrated on these victims.
Following the scandal, colleagues of mine from every segment of the ART community came forward and generously donated their time and services to those victimized by Collins. Incredibly, several surrogates and egg donors also volunteered to help these victims on a purely altruistic basis. A few of the victims actually were able to see their dreams realized and have welcomed a baby into their lives.
But they are few and far between. Many of my former clients have had their life savings stolen from them with no realistic ability to replace those funds in order to start the surrogacy process anew. Others have been so affected and disheartened by what transpired that they lost the will and desire to try again – believing it their fate to be childless.
For these people, there will be no justice. So while I applaud law enforcement for never losing sight of the heinous nature of Collins’ crimes, our legal system is ultimately incapable of dispensing the justice that is truly warranted. And, for that, I cannot help but feel conflicted and saddened that more could not be done.