California Surrogacy Bill Reacts to Lawyer Bad Acts

[posted on behalf of Judy Daar]

Mishaps in assisted reproductive technologies (ART) breed public outcries and legislative hand-wringing.  It is no wonder a 2011 San Diego-based ART debacle dubbed “an international baby-selling ring” caught the attention of the California legislature.  In a state where elected officials practically swear fealty to the mantra, “there ought to be a law,” the conviction and imprisonment of a prominent attorney who ran a gestational surrogacy agency gone awry was bound to garner lawmaker attention.  The resulting sausage, A.B. 1217, passed legislative muster last week and now awaits signature or veto by Governor Brown.

The story of A.B. 1217 is far more elaborate than the typical sequence of mishap to measure that often accompanies ART blunders.  In California alone, our codes are peppered with laws reacting to all manner of ART black eyes, including the egg-swapping scandal at the UCI Center for Reproductive Health in the mid-1990s, the luring of egg donors by big money pay outs and the criminal mishandling of trust funds supplied by intended parents in surrogacy arrangements. Overwhelmingly, these laws are dormant but their enactment expressed the public’s outrage when third parties manipulated and mishandle the birth of an assisted conception child.

A.B. 1217 is likewise designed to forestall a perceived evil – the selling of ART offspring, a noble enough cause. But the bill began its legislative life in February 2011 as a behemoth “kitchen sink” overhaul of ART law in the Golden State.  The 34-page bill regulated all manner of assisted reproduction, sometimes for the better (defining “infertility” for purposes of state mandated health insurance as “the desire to achieve pregnancy by means other than sexual intercourse” – thus, growing the coverage pot for single and same-sex parents), and sometimes for the worse (requiring anyone using ART to undergo a mental health consultation – implying that infertility itself is a psychological impairment and burdening couples who just need a little help reproducing using their own gametes with an intrusion not visited upon those able to reproduce naturally).

The original bill, authored by Assembly Member Felipe Fuentes (D-San Fernando Valley), would have rocketed California to the top of the ART regulation charts.  This fact alone held the kernel of the bill’s undoing – there was much for many around the state to rally against, and rally they did. The bill limped through the legislative process surviving extensive amendments, including the first amendment that shrunk the bill to 2 pages. By mid-summer, the language was pared into a modest attempt to codify existing common law before being tabled in August 2011.  By all lobbyist accounts, the bill was unlikely to be resurrected in the next legislative session.

Enter Theresa Erickson, a well-known ART lawyer (with her own radio program on the topic) who was a frequent speaker in many practice-oriented symposia. In August 2011, news reports began to surface detailing Theresa’s involvement – construction, really – in a scam in which American women were recruited to travel abroad to be implanted with embryos formed from donated egg and sperm.  Once the women reached their second trimester, they returned to the U.S. and were essentially marketed to prospective parents under the ruse of a failed surrogacy arrangement. The original intended parents, Erickson would claim, backed out of the deal leaving the donor-conceived child in the lurch.  For a mere $150,000, the wannabe parents were invited to substitute in for the defaulting couple.  More perjury followed when Erickson filed petitions with the local court seeking pre-birth judgments on behalf of the new intended parents, falsely warranting their participation from the get-go.

Shortly after Erickson was sentenced to prison in February 2012, Assembly Member Fuentes gutted and rewrote A.B. 1217 to require gestational surrogates and intended parents be represented by separate independent counsel prior to executing and notarizing an agreement. Once such an agreement is lodged with a court, it operates to validate the parent-child relationship between the intended parents and the child.  Since California law already recognizes the validity of gestational surrogacy arrangements and the parental relationships that flow from these agreements, the bill amounts to nothing more than a full-employment act for ART lawyers.

While I basically support the bill (and penned an op-ed in the wake of the Erickson guilty plea in 2011 suggesting such a solution) I can’t help but point out the probable futility of the new regulation. For starters, one of Erickson’s co-conspirators was also a lawyer, so there’s (sadly) no reason to think future attorneys couldn’t somehow go rogue in an effort to circumvent the new law. But on a more hopeful note, there’s more reason to believe that the law is just not necessary.  By reacting to an outlier situation, albeit one that was truly heinous, the legislature carries on the tradition of enacting feel-good regulations that have little practical impact.  Some may call me a legislative nihilist. I’d just say less is more – the length of this post notwithstanding.

The Petrie-Flom Center Staff

The Petrie-Flom Center staff often posts updates, announcements, and guests posts on behalf of others.

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