Theresa Erickson, a noted California lawyer and surrogacy expert, has pleaded guilty to charges stemming from a baby-selling ring. Erickson, a second lawyer from Maryland, and an accomplice admitted to lying to clients about the babies they placed with them. None of the adopting parents were charged with wrongdoing.
The scheme highlights a hazard of surrogacy. The three woman recruited surrogates and sent them to the Ukraine to have embryos implanted in them. Then, Erickson duped couples who were interested in adoption, telling them that another couple had backed out of a surrogacy agreement. While the adoptive parents get to keep their children, they have no knowledge of who the sperm and egg donors are.
Take a look at the supermarket tabloids and at the popular women’s magazines and you’ll see story after story of women who’ve had multiple-birth pregnancies far beyond the numbers of just a few decades ago. The eight children of John and Kate and the multiple births of the Octo-Mom are the topics of debate and controversy.
Yet it’s a common scenario among women who have undergone fertility treatment, sometimes known as Assisted Reproductive Technology (ART). According to the Centers for Disease Control and Prevention, ART includes all fertility treatments involving both eggs and sperm. Sperm and egg donations are good examples. Other methods couples often try are adoption and surrogate mothers.
Infertility can be more than a personal or family problem. Many fertility treatments and options carry legal issues you may have to deal with.
Impact of State Laws on Surrogacy & Adoption Agreements
Many states have strict requirements for a cooling-off period to allow birth parents to give their legal consent for another person to adopt their baby. In many states, it’s 72 hours after birth. The laws ar designed to protect the parental rights of birth parents.
Anyone thinking of adopting or using a sperm or egg donor or surrogate to have a baby should talk to an attorney first. It’s important to be aware of the legal requirements in your state – as well as any other state connected to the birth, donor or surrogate – for an adoption or contractual agreement to be valid.
An attorney can make sure you follow the law and advise you about the risks and benefits of other alternative reproductive measures. This advice can help you understand potential areas of concern, and help you avoid lawsuits and disappointment.
A Limited Medical History is Likely
The use of sperm and egg donors and surrogate mothers has become much more common in the past decade. This has led to an increase in the lack of information about the fetus’ genetic background, family medical history and exposure to risk factors for birth defects.
You’ll also have little or no way to verify the donor or surrogate’s medical history. Because of this, you should be prepared for any number of unexpected conditions your child may be born with or develop over time.
Where any alternative method of reproduction is used, you’ll likely be asked to sign a lengthy consent and release, where you agree not to sue the donor or surrogate. Read it carefully; make sure you know what legal rights you’re signing away.
Damages Are Difficult to Obtain
In one recent Illinois case, a mother and her multiple children sued a fertility clinic for disclosing their names without permission on a local TV news story about embryo adoptions. Although that case was dismissed based on procedural rules, it shows the type of issues that may arise when an unconventional method of reproduction is used.
Wrongful Birth Suits
Some parents have sued for the wrongful birth of their child when they weren’t aware or told their child would be born with a birth defect.
These actions are different from a medical malpractice lawsuit for birth injuries. In wrongful birth cases, parents argue that the doctor didn’t diagnose or detect the fetus’ problems early enough, or that special provisions weren’t in place to address the infant’s needs.
Actions for wrongful birth face an uphill battle before juries who may think the parents are saying they wish their child had never been born. Another difficult question is whether the parents would have chosen to terminate the pregnancy. It’s hard for even an experienced attorney to predict how a jury might react.
Of course, no one’s saying you shouldn’t pursue your dream of having a baby and building a family. Doing your research and and understanding how the common alternative methods of reproduction actually work and the pitfalls to avoid will help make that dream a reality.
Questions for Your Attorney
- What are the legal issues involved with the various infertility treatments in my state?
- Can egg or sperm donors take legal action to find out who received their sperm or eggs? Do donors have any legal rights over embryos that result from their donations?
- If we use surrogate who lives in India, will we have to go through India’s adoption process, even though the child is ours genetically? Would that child be a US citizen if both my spouse and I are US citizens?