Law Enforcement Continues To Fail The Infertility Community

Complete post here: http://www.eggdonor.com/blog/2010/01/05/law-enforcemen…lity-community/

From the OctoMom debacle to the the SurroGenesis scandal to the outrageous New Jersey surrogate ruling, 2009 was the worst year in memory for the infertility community. As bad as these incidents were, the real tragedy last year was that there were hundreds of victims of failed agencies who had the criminal justice fail them.

As of today, not a single person has been charged with a crime in the embezzlement of more than $3,000,000.00 of client trust funds from Michael Charles Financial Company and SurroGenesis. Allegations of impropriety against Bala Surrogacy and OurBirthRight Surrogacy have fallen on deaf ears. B Coming Agency, operated by Rosa Balcazar, continues to operate seemingly unhindered notwithstanding judgments, defaults and numerous police complaints filed against them. These are not the only agencies that have been accused of wrongdoing or have shuttered their doors, abandoning their Intended Parents, Surrogates and Egg Donors – just some of the most notable.

Our firm has spent countless hours meeting with state and federal law enforcement officials from California to New Jersey to discuss the alleged criminal wrongdoing. International clients of ours have literally established residency in California for the sole purpose of securing justice for themselves and similarly situated victims. All to no avail.

I receive emails daily from Intended Parents, Surrogates and Egg Donors requesting assistance in recovering funds from failed agencies or seeking my help to intervene on their behalf with local law enforcement. Each call or meeting is almost identical. The detectives are courteous, curious and confused. Quite simply, they do not understand the machinations of the surrogacy and egg donation industries. Most are desirous of helping but are confounded by the complexities of the arrangements and the responsibilities of the multiple parties participating and suggest that the victims file a civil suit. In the cases involving B Coming and SurroGenesis, local law enforcement routinely (and understandably) claim they lack the resources and the matters are best handled by the FBI. The FBI is notoriously close-lipped about their investigations and one can only assume that these cases are not high on their priority list in a post-9/11 world.

Now this post is not meant as an indictment of the police or some liberal clap-trap about how awful law enforcement is. As a young lawyer cutting my teeth, I represented police officers and municipalities in civil rights lawsuits (ala Rodney King). I am very sympathetic and sensitive to the limitations and priorities that these law enforcement agencies have to operate under on a daily basis. However, the current situation is simply not acceptable and law enforcement has unwittingly become a silent co-conspirator with a number of agencies who brazenly continue to perpetrate these crimes, confident that the authorities lack the resources or understanding to prosecute them. These agencies have no qualms about rolling the dice in a civil lawsuit knowing that the cases are expensive, take a long time to prosecute and often are not cost-effective. Others go to extraordinary lengths to make themselves judgment proof or are prepared to file bankruptcy to extinguish any adverse judgment. The bottom line is that civil litigation is largely an ineffective remedy for those victimized by these unscrupulous agencies.

First year law students are often posed with this question in their criminal law class: what are the theoretical purposes of punishment under our justice system? The answers always vary and are often hotly debated. Retribution, Rehabilitation, Restitution and Incapacitation are often identified and are all legitimate purposes and would have a meaningful effect on this industry. The fifth theory of punishment is deterrence. Under utilitarian philosophy, punishment for illegal behavior should be designed to deter future criminal conduct. Deterrence operates on a specific and a general level. General Deterrence is often defined as a punishment severe enough to dissuade other people from committing criminal activities. This kind of punishment serves as an example to the rest of society and puts it on notice that criminal behavior will be severely punished. Specific Deterrence means that the punishment should be meaningful enough to as to prevent the same person from committing future crimes.

As it relates to what ails this industry, the failure of law enforcement to discharge their responsibilities has removed from the equation one of the most important protections available to a civilized society – the ability to deter future bad behavior. Quite simply, there is no longer a disincentive for agencies to act criminally. To the contrary, the lessons of 2009 reveal that criminal behavior will be handsomely rewarded. Unless and until law enforcement prosecutes one of these failed agencies, we are destined to see more of these incidents in 2010.

Just moments ago I got off the phone with one of the victims of the SurroGenesis scandal. He was understandably frustrated by the shortcomings of our civil litigation system and the ability for these defendants to escape accountability. He was even more angry about the failure of the FBI and local law enforcement to take any action against those responsible. His question to me is one I hear daily: what can we do to force the FBI to do something? Honestly, I do not know anymore what else can be done. My clients have met with law enforcement officers from coast to coast without any success. I along with other attorneys in my office have spent hundreds of hours speaking to detectives and district attorneys to not only explain the underlying behavior but to educate them on the industry in general. That has not worked. I have given media interviews to newspapers from the New York Times to the Los Angeles Times in the hopes that their coverage would prompt law enforcement to discharge their obligations. Despite exhaustive coverage from these newspapers and dozens of local media outlets, there was no progress. Ditto for the national television networks, CNN and PBS who all covered these scandals. Even the victims themselves, angered, hurt and disillusioned by what they experienced, made the difficult decision of going public with their story and revealing the most personal details about their lives in the hopes that their story might stir the FBI or local police to take action. Again, no luck. Writing campaigns and petitions to local, state and federal politicians have met with the same fate.

We are not talking about ingenious schemes to defraud money from these fertility patients and the surrogates and donors who help them. To the contrary, the people responsible for these heinous actions are truly among the stupidest criminals imaginable. They were brazen, unapologetic and their efforts to conceal their criminal activity so poorly conceived that it is unlikely any criminal defense attorney would ever allow their client to stand trial, but instead insist that they accept a plea bargain. But we have come full circle as we cannot get to the punishment phase until we find a law enforcement agency and District Attorney willing to prosecute.

I do not know what purpose this blog post will serve. I am all out of good ideas on how to motivate law enforcement to prosecute these individuals who remain fully capable of continuing to prey upon vulnerable victims. Our office will be filing two new lawsuits this month against an agency for absconding with their clients’ funds. Perhaps the media will pick up on these new lawsuits and another cycle of media coverage might just be the impetus to nudge law enforcement to the tipping point where they have no choice but to act. Then again, who would have imagined that more than 9 months after the SurroGenesis scandal broke, Tonya Collins would yet to be charged with a single crime?

These scandals have destroyed lives and dreams and I am not being hyperbolic. I have met with victims whose level of anger surpasses anything I have ever witnessed in 22 years of practice and whose reservoir of patience has dried up. It is palpable and it is understandable. Law enforcement needs to take these allegations seriously and prosecute the responsible parties before the victims list gets any longer.

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