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Talking, writing, educating, and change making in the field of fertility for more than twenty years

Legal Questions Answered on The Baby Selling Scheme

Thomas Pinkerton, Esq of The Reproductive Law Center read my blog, called The Theresa Erickson Baby Selling Ring: The After Shocks Are Just Beginning and offered to answer the questions that I raised in the post. So…of course I took him up on it!  Thank you Tom, for taking the time to thoughtfully answer my questions. There were a lot of them!  I know that the information will be of interest, and hopefully reassuring to so many people.

Question:  How many surrogates are out there right now who are pregnant? What will happen to those babies?

Thomas Pinkerton’s Answer:

“We hope that there are no pregnant “surrogates” out there that were caught up in this scheme. The latest media reports state that the FBI does not know of any future births pending. I use the term “surrogate” in quotes because these women are not surrogates. A surrogate is a woman who is carrying a child that was intentionally created by an Intended Parent BEFORE the embryo transfer procedure. A woman is this situation is simply a birth mother even though the child is not genetically related to her. In my opinion, the birth mother will be considered the legal mother by default, and will be able to decide to either keep and raise the child herself or place the child for adoption. Any other birth mothers out there who were used in the scheme should contact a family/reproductive law attorney immediately to sort out the difficult choices ahead.”

Question: The rumor mill says that there are some ( I have not heard numbers yet), so who is taking care of them?

Thomas Pinkerton’s Answer:

“The Federal Prosecutor interviewed in a media story that I heard stated that the families with these babies are not being held responsible for any wrongdoing, and the babies will remain with them. If there are any other surrogates out there that are currently pregnant and not matched with Intended Parents, I urge these women to contact a reputable family/reproductive law attorney immediately to help find a support system for the remainder of the pregnancy”.

Question: Will these surrogates be paid and receive proper medical care?

Thomas Pinkerton’s Answer:

“Adoption law is very specific regarding allowable payments to birth mothers. The prospective parents are allowed to pay for certain limited expenses, but the birth mother cannot be compensated in the same manner as a surrogate. An adoption lawyer will be able to assist the parties in sorting out this issue”.

Question: Where will these babies who are unborn and innocent go? Will the children have US Citizenship? Will they be put into protective custody and become a ward of the state? How long will they need to wait until they can be adopted into loving homes?

Thomas Pinkerton’s Answer:

“Any child born in the U.S. is automatically given U.S. citizenship, it does not matter where the child was conceived. There should be no need for child protective services to get involved unless the birth mother “abandons” the child. As we all know in this industry, there are thousands of loving, good families out there just waiting to adopt a child. The birth mother should have no trouble going through proper legal channels to find a loving family to adopt the child. The birth mother and the adoptive parents she chooses can make an adoption plan before birth and the adoptive parents will generally be able to take the child home directly from the hospital.”

Question: How are prospective families, consumers, intended parents and surrogates able to feel safe when working with an agency if someone as “respectable” as Theresa Erickson confessed to running a baby selling ring? As a long time fertility advocate (over 20 years), from non profit experience to private one on one fertility coaching – Theresa had all the makings of a perfect referral.  She served on patient organization boards, she was highly visible – often on television. It is true that she was not on my referral list for my private one on one coaching clients because there were too many rumors about her – but not because of anything that she did. I just wasn’t comfortable. But how is a regular person seeking fertility care suppose to know about the inside talk track of a profession?  For the average patient – knowing who to trust just got scarier. Everyone wants to know the check list of how to find the perfect referral – but on paper Theresa had all the checks in place.

Thomas Pinkerton’s Answer:

“Educate yourself: I believe education is the best insurance against becoming a victim. Ask questions of everyone in the industry that you may be hiring. As you start to assemble the answers to your questions, you will start to see a pattern of answers that begin to all point the same direction, with consistent answers. Try to understand the basics of a true surrogacy. I heard once that counterfeit specialists studies the genuine article in order to become an expert. Once you understand the genuine surrogacy process, you will be able to spot a counterfeit right away”.


Question: How will the parents of the children created through this “made to order” baby ring be advised as what they should share with their children? How do you tell this story to children? How will knowing that they were created with the intent to be sold effect their lives?


Reputation: Arguably this is the most troublesome part of this question. Twenty years ago I was in a judge’s chambers asking him to sign a stipulated surrogacy judgment declaring that my two clients (the intended parents to a surrogacy agreement), were the legal parents of a child to be born to their surrogate in a few months. After a few minutes of small talk, he signed the judgment and I turned to leave. As I got halfway to the door to his chambers he said “Counsel” in a very authoritative voice. As I turned around he looked me straight in the eye and said “This is legit . . . right?” I stammered back to him, “Why yes, Your Honor, of course it is legit.”

He nodded his head and I left a little puzzled by the question. Fourteen years later I was in the same courtroom, waiting for my turn to approach the same judge, with a request that he sign a surrogacy judgment at an ex parte hearing. I was accustomed to showing up at any hour of the day, taking my seat and quietly waiting for the judge to recognize me and give me a slight nod indicating that he knew I was there and would invite me to his chambers when there was a break in the testimony of the recently divorced in front of him arguing about who should have custody that weekend.On this occasion, I brought my new associate to introduce her to this judge because I wanted him to know that when she came to court to request these judgments she was representing me and my firm. When the judge was ready to hear my case, I asked him if I could introduce him to my new associate who was fresh from the bar exam and her swearing in ceremony. He took us aside, away from the court reporter and bailiff, and standing in the doorway entry to his private chambers he told my associate that he had been granting these judgments for me for more than a decade, and based on my record with him, he trusted me to never bring a case to him that would ever “come back to him.”

Afterwards I realized what a huge responsibility it was to be a practicing attorney in this field. We lawyers are officers of the court and a part of the legal system that will only work if we are candid and open with the facts. I understood immediately that this judge sending a veiled message to my new associate that he expected her to be honest and candid with our cases as well.”

We can be vigorous advocates, and present novel arguments, but trust is non-negotiable. Trust is what we are now fighting to re-capture. The victim of the “baby selling” scandal is the Public trust. So how do you know if you have found a lawyer that you can trust? If you ask enough professionals in this industry across all professions regarding a particular professional’s reputation, you will find a comfort level that is still no guarantee, but will serve you well 99% of the time. The other 1% will be difficult, if not impossible to eliminate. The value of having a lawyer who has a history in this field cannot be overstated.”


Once again, I am very grateful to Tom for taking the time to so thoughtfully answer these questions…it has been a hell of a week in the world of infertility and surrogacy. I personally have found getting the answers to these questions very helpful. As Tom said – “The value of having a lawyer who has a history in this field cannot be overstated” and then there is the matter of trust.


About Pam Madsen
Talking, writing, educating and change making in the field of fertility for more than twenty years
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