by Jean Benward, L.C.S.W.
In part, this story is about infertile couples, with apparently good intent, who engaged in surrogacy outside the boundaries of good practice. This is about trusted professionals who were able to take advantage of infertile couples. It has a familiar ring to it. In the 1990's, Ricardo Asch and his partner stole eggs from unsuspecting patients, used them to create embryos for other infertility patients, and became wealthy in the process. In the 1940's, the well-respected director of the Tennessee Children's Home Society arranged for thousands of black market adoptions, keeping most of the profits for herself. In all these cases, the children were provided with false or absent histories.
What can I conclude from this? Infertility patients are an extremely vulnerable group and there will be others willing to exploit their vulnerability. The headlines and the stories focus on the money, the betrayal, the security of the parents legal status and the criminal details. As has been the case in the past, the needs of the children for truth about their conception and parentage hardly even make the radar And, I do wonder if some parents are so desperate to have a child they may be willing to ignore warning signs or look the other way to ensure they get a baby.
In some regards, things have not changed in the last 70 years. Couples want babies, children are denied knowledge of their heritage, and someone is able to take advantage of the lack of transparency in the arrangements. The people who help create families, especially the highly placed ones, have enormous power. This means that infertility patients as well as donors and surrogates become hesitant to question them or take action against them. The full story of the Tennessee adoption scandal did not come out until years later. Ricardo Asch lied and connived for years before he was finally charged. Theresa Erickson apparently operated her scheme for several years before the FBI arrested her.
Do a Google search on surrogacy scandal and virtually every headline starts with "surrogacy scandal raises questions about regulation". It is an eye-catching headline. I am less sanguine about the enactment of more regulations. Over time government institutions become rigid and inefficient. I do think however that it is worthwhile to ask if there are things that can be done to further protect everyone's interests, including the larger society. We do not have to re invent the wheel to look for guidance about ensuring oversight to a surrogacy arrangement. The national conference of commissioners on uniform state laws has drafted a model act called the Uniform Parentage Act. The Model Act addresses gestational surrogacy guidelines for those states that choose to legalize gestational surrogacy. Unfortunately, few states have enacted the recommendations. The ABA likewise has proposed a model act with reasonable provisions. A couple of the recommendations stand out. One provision requires a written contract be signed and on file with the court in place before pregnancy occurs. Secondly, any person wanting to terminate the agreement will file notice with the court. In establishing jurisdiction, the parties need to have resided in the state for 90 days. Had either of these recommended provisions been in place it would have made it harder for Erickson and her partners to carry off the scheme. I think we would all be well served if we continued to look at the provisions of the Uniform Parentage Act or the ABA recommended Model Act.
There are profiteers who exploit in any occupation. What is different here is the "product" is children. I would hope we can talk about how to secure accurate donor records and information for those children. I am glad there are committed decent professionals, donors and surrogates helping to create families. I am glad The AFA is committed to providing education and support for those involved. I look forward to continued conversations about these issues.
Jean Benward, LCSW is a psychotherapist with over 25 years of experience with issues surrounding adoption, infertility and donor conception. She is a former infertility patient who formed her family through ART. She is the co author of the AFA "Talking with Children about Sperm Donation" Fact Sheet.