Under the conspiracy, women would go to overseas clinics and have embryos implanted, becoming pregnant. Once the pregnancy entered the second trimester, Erickson and co-conspirators would solicit prospective parents willing to pay the high fees to buy the parental rights for an unborn baby, the charges state. … Under the baby-selling scheme, prospective parents were duped into believing that the pregnancies were the result of legitimate surrogacy agreements gone awry because the first set of intended parents backed out, federal prosecutors alleged. The replacement parents paid fees of more than $100,000 to take over what they believed were legitimate surrogacy agreements.
The women who agreed to become pregnant were promised $38,000 to $45,000 “for each successful pregnancy that resulted in a birth.” The story includes this fascinating passage: “The timing of when a deal is struck matters. Before conception, a woman can agree to become pregnant for profit, under California law. After conception, however, the woman cannot profit from being pregnant and supplying a child to prospective parents. The first instance is considered surrogacy, the second instance is adoption.”
So, in this case, timing really is everything. What is interesting is that if the exact same scenario took place except for the minor change that the “prospective parents” had agreed to the scheme before the woman went overseas to become pregnant, it would have been perfectly legal.
As a legal matter, the exact timing of the dickered bargain may be significant, but it is hard to see much difference as a moral or ethical matter. Buying a baby and renting a womb look like baby selling regardless of the amount of disclosure involved.
Utah law is surprisingly accepting of surrogacy agreements, though it does include a nod to state mores in requiring prospective parents be married. It specifically allows, however, for payment to the woman who will carry the child to term before giving that child to another couple.