Indiana Family Lawyer Blog

This is part two of a two-part series on surrogacy considerations.Surrogacy can be an extraordinary gift to help an individual or couples build their family. However, it is best if some security measures be employed to ensure that all parties have a positive experience. There are many issues to consider when entering into a surrogacy relationship. The topics below are by no means exhaustive, as every surrogacy relationship is different. Once again, we present you additional questions to consider when using a surrogate.

1. Is the surrogate married?
The surrogate might benefit by having the support of a husband or partner throughout the process. The surrogate's partner may also need to agree to be tested for a sexually transmitted disease. The husband will also need to sign some of the legal documents.

2. Has she had other children?
It is required that the surrogate have carried a healthy child to term so that it is clear that the surrogate has the ability to have a normal pregnancy without complications, including preterm labor or birth.

3. What kind of lifestyle is she living?
Your surrogate is using her body to grow your child, so you want to choose one who will make the right daily choices for your baby. Ask your surrogate about her diet, fitness level, nicotine habits, and lifestyle choices such as drug and alcohol consumption before and during pregnancy to make sure you're choosing a healthy surrogate for a healthy baby.

4. How old is the surrogate?
It is important that the surrogate is of legal age to consent to an agreement, but is also not of a more mature age that may create complications or risks in the surrogate pregnancy.

5. Is she emotionally stable?
Make sure that she is seen by a psychologist prior to any transfer of embryos to evaluate her emotional ability to be a surrogate. There should be a full psychological evaluation of the surrogate. The surrogate should also be seen by a psychologist throughout the pregnancy and up to two months after birth.

6. Does she have a history of STI's?
STI's can put the baby's health at risk and should be evaluated prior to any transfer into the surrogate's body.

7. Can you afford the cost of the agreement?
Do you have the financial ability to pay for the pregnancy? Can you cope with the costs of a high-risk pregnancy, premature birth and miscarriage? Multiple babies can increase the cost of the surrogate, as well as taking care of them after they are born, meaning multiple cribs, diapers, car seats, etc. Speaking of financial woes, using surrogacy to have a child is not an inexpensive undertaking. You'll be responsible for paying the medical bills of the surrogate as well as any legal costs that might arise from the pregnancy. You want to make sure you have an accurate understanding of your financial obligation prior to beginning your journey.

8. What kind of relationship do you/she want to have?
This is where each party learns what is expected of him or her by the other, and if they can do what is expected of them before and during the pregnancy. They should also discuss the kind of relationship they believe they would want after birth. Many couples and surrogate mothers find they cannot answer this question, because they have never participated in surrogacy before. This is an answer in itself, as it indicates they are open to many possibilities. A counselor can guide the parties by giving them situations that they might want to consider. If a long-term relationship is expected by any party, that is ok, but the request needs to be evaluated in terms of what is in the best interest of the child.

9. Is one parent biologically connected?
If either an egg donor or sperm donor are needed with a surrogate mother, be prepared for a far more complicated relationship both legally and psychologically. In Indiana, if the surrogate has any genetic relationship to the child(ren), the intended parents risk having her assert her parental rights and getting shared custody of the resulting child(ren). Also, if both donor egg and donor sperm are used then this creates more legal risk that the surrogate could assert parental rights in the child that she carried. Since neither the intended mother or intended father are genetically related, they are in no position to say that they have more rights to the child that the surrogate is carrying, other than claiming their "intent". Indiana has had no disputes regarding any donor material so it is unclear how the court would decide such a situation.

10. What is the legal status of the relationship in the surrogate's state?
It is crucial to get an independent legal consultation regarding the laws of the state where she resides. If there are any doubts about finalizing your parental rights, you should not proceed with that surrogate. You should also not proceed with a surrogate if she is planning on delivering the baby in another state because she could go into premature labor and this may not be possible. It is best that all parties have their own separate legal counsel to represent their best interests.

If you have questions about surrogacy or other family law matters, please contact Harden Jackson Law.

Remember, these suggestions are not meant to be legal advice. You should consult an attorney to discuss the specifics of your situation.

Surrogacy can be an extraordinary gift to help an individual or couples build their family. However, it is best if some security measures be employed to ensure that all parties have a positive experience. There are many issues to consider when entering into a surrogacy relationship. The topics below are by no means exhaustive, as every surrogacy relationship is different. Your needs as well as the needs of the Surrogate may change during the course of the surrogacy. With that said, it is extremely important to consider the following information prior to entering into a surrogacy relationship. This is part one of a two-part series.

1. Is the surrogate in a "surrogacy friendly" state?
It is extremely important that the surrogate resides in a "surrogate friendly" state. It could prohibit the intended parents from establishing parentage in the child if the state prohibits surrogacy. There are a number of legal issues that concern third party reproduction. The laws regarding third party reproduction vary and are different from one state to another in the United States. Thus, all couples are advised to consult with an attorney who is knowledgeable in the area of reproductive law, within their individual state. And this attorney needs to be legally able to practice law in the state where the surrogate will deliver.
There are very few states that protect the Intended Parents (IP) by issuing pre-birth orders through the court system which places the name of the Intended Parents on the birth certificate prior to the baby being born. This makes the IPs the Legal Parent(s) at birth and they do not have to adopt their baby.
In the United States, the surrogate must live, be a legal resident, and deliver in one of the surrogate-friendly states.

2. Is there a medical necessity to have a surrogate?
Keeping your good figure or a stressful high-powered job are not valid reasons to work with a surrogate mother. Most IVF doctors (and all good IVF doctors) will only work with couples that have a medical reason to do surrogacy. There are sometimes psychological issues that can be included, but we consider psychological to be a medical reason.

3. Do I want to go through an agency, or find a surrogate as an independent?
Evaluate the advantages to working with a reputable surrogacy agency. Choosing surrogacy means you'll need a help to oversee the process. An agency helps by matching you with a surrogate that is a compatible match for you as well as coordinating any screening and legal consultations. An agency also discusses unthinkable issues such as pregnancy termination and reduction, complications, compensation, housekeeping expenses, bedrest, confidentiality issues, etc. They can help with an anxious process by educating you and coordinating all of the overwhelming steps.

4. Does this surrogate have insurance without a surrogacy exclusion?
If her insurance includes a clause that excludes surrogacy pregnancies, then she will need a supplemental insurance policy. If the intended parents do not obtain a supplemental insurance policy, they should be prepared to pay for any expenses during the pregnancy out of pocket, including any costly complications. State or federal insurance, like Medicare, are an absolute bar for surrogacy.

5. Do I need a supplemental insurance policy?
Supplemental insurance is always a good idea to protect intended parents from extremely costly complications that are unforeseen during the pregnancy or birthing process. Although the policies are expensive, it could end up costing intended parents more money if they opt not to obtain a supplemental policy.

If you have questions about surrogacy or other family law matters, please contact Harden Jackson Law.

Remember, these suggestions are not meant to be legal advice. You should consult an attorney to discuss the specifics of your situation.

The National Infertility Association will recognize National Infertility Awareness Week®, April 21 through April 27, joining millions of women and men fighting the disease of infertility, professionals and other thought leaders to promote greater awareness about infertility. For National Infertility Awareness Week®, Harden Jackson will focus our activity on educating both professionals and families on issues relating to infertility. Harden Jackson is dedicated to assisting couple and individuals achieve the dream of building a family. We provide sound legal advice for an oftentimes confusing and emotional journey. There are quite a few different ways to bring a child into your life. While certainly not comprehensive, the following information can help you understand more about the different ways you can build your family.

Surrogacy - Surrogacy is an assisted reproductive technology which provides an option for individuals or couples who are unable to conceive or carry a child. Advances in reproductive methods including in vitro fertilization (IVF) provide alternatives for creation and implantation of an embryo for pregnancy. A surrogate agrees to become pregnant for the purpose of giving the child to another individual or couple (the "intended parent(s)" or "IPs"). Parties to a surrogate arrangement typically enter into a surrogacy contract (or surrogacy agreement) which details the terms of the process including costs.

Egg or Sperm Donation - Surrogacy can also involve egg and/or sperm donations. If you are using an egg or sperm donor for your surrogacy process, most agencies or REI doctors will require a legal contract to address the responsibilities of both the Intended/Recipient Parent(s) (IPs) and the donor. The contracts provide protection for all parties by detailing compensation and responsibilities and help clarify expectations.

Embryo Adoption - Embryo adoption provides a new adoption choice! Rather than adopting a child who has already emerged from her mother's womb, embryo adoption allows the adopting family to begin the adoption journey nine months earlier with pregnancy and childbirth. Embryo Adoption provides the Intended Parents, who are unable to naturally or medically conceive, the opportunity to give birth to a child (this could also include using a Surrogate).

In all of the above situations there are legal implications and responsibilities. For more information on the legal services we provide to help you build your family, contact Harden Jackson Law.

We are continually reminded that many prospective parents and Assisted Reproductive Technology (ART) professionals believe surrogacy can't happen in Indiana. Indiana has strong case law on the establishment of parentage in biological parents through surrogacy. Additionally, our firm has implemented the same process when using donor egg and/or sperm. Our firm files for parentage in many surrogacy cases per year and has not had any denied to date. It IS happening in Indiana, but not without some legal risks.
There remain old surrogacy statutes that indicate surrogacy is against public policy. These statutes were written under the idea of traditional surrogacy (In a traditional surrogacy, the surrogate becomes pregnant with her own biological child, which has been conceived with the intended biological father or donor sperm) only and did not contemplate gestational surrogacy (In a gestational surrogacy, the surrogate has no genetic link to the child/ren she is carrying; rather, the egg is provided either by the intended mother or an egg donor). There have not been any gestational surrogacy contract disputes in the State of Indiana for judicial publication. We do have an antiquated surrogacy law, but in practice judges are following the more current case law and there has been support shown by the judiciary for surrogacy evidenced by their signing of the necessary documents.
Indiana has a strong position that biological parents of a child born through gestational surrogacy will be given parental rights. There are legal risks that would need to be considered when using a surrogate in Indiana. Also remember, that we represent nearly 50 clients each year in these matters and have not encountered any negative responses from the Court and have been successful in establishing parentage. We have had wonderful success for many families using surrogates in the State of Indiana.

Remember, this information is not meant to be legal advice. You should consult a family law attorney to discuss the specifics of your situation.

If you have questions about surrogacy, egg/sperm donor contracts or other assisted reproductive technology, contact Harden Jackson Law.

Surrogacy is a family building option for those who want a child and have not had success with other assisted reproductive technology (ART) treatments. There are two types of surrogacy -- traditional and gestational -- that are practiced today.

In traditional surrogacy, the surrogate is both the egg donor and surrogate, and is therefore genetically related to the child. The surrogate carries an embryo that was created with her own egg and the sperm of the intended father who, with the intended mother, will obtain legal and physical custody of the child. Traditional surrogacy can be accomplished either by intrauterine insemination (IUI) or by in vitro fertilization (IVF). The Traditional Surrogate is inseminated with the Father's or Donor's sperm monthly at ovulation until pregnancy occurs.

In gestational surrogacy, the surrogate gives birth to a baby created with an egg and sperm from the "intended parents," or the embryo can be created from a donor egg and/or donor sperm. The majority of surrogates today are gestational carriers and have no genetic relationship to the child born from the arrangement. IVF is used to fertilize the eggs in a laboratory. If the fertilization is successful, a fertility doctor transfers some or all of the resulting embryos (usually two or three) into to the surrogate's uterus. After delivery, the gestational surrogate immediately surrenders the baby to the intended parent(s).

Many different people can use surrogacy as an option to build their families, including couples and single women who have had multiple failed pregnancies, those who are unable or have difficulty conceiving, those who are unable to carry a fetus to term or same-sex male couples who want a child with a genetic link to one of the partners.

With that said, we are continually reminded that many people still believe surrogacy can't happen in Indiana. Surrogacy can and does happen in Indiana! Stay tuned for our upcoming blog on surrogacy and the law in Indiana.

From a recent CNN story, when a Connecticut couple learned their surrogate mother was carrying a fetus with developmental disabilities, they offered her $10,000 to have an abortion.

In August 2011, Crystal Kelley was carrying the child of another couple. When Kelley was approximately 20 weeks pregnant, an ultrasound showed that the baby had a cleft lip and palate, a cyst in the brain, and a complex heart abnormality. The parents offered Kelley $10,000 to abort, stating "Given the ultrasound findings, (the parents) feel that the interventions required to manage (the baby's medical problems) are overwhelming for an infant, and that it is a more humane option to consider pregnancy termination,". Kelley declined. The couple and the surrogate had legal contracts and part of that contract included a clause that she'd agree to abort if the fetus had a severe abnormality. However, the contract did not define what constitutes such an abnormality.

The parents then stated that they planned to exercise their legal right to take custody of their child -- and then immediately after birth surrender her to the state of Connecticut. She would become a ward of the state. Kelley could not bear to send the child into the foster care system, especially when she had so many medical problems.
Kelley fled Connecticut for Michigan, where she, not the genetic parents, would be considered the baby's legal mother. Michigan is a state that does not recognize surrogacy contracts, and so the baby legally belongs to the woman who's carrying the baby.

In Ann Arbor, she gave birth to a child with severe medical conditions. The legal dispute over the child continued. The case became even more complicated when the parents filed legal papers that included a stunning admission: the wife was not the baby's genetic mother -- they'd used an anonymous egg donor.

Three weeks after the baby was born, both sides finally reached agreement. Kelley had found an adoptive family that had experience with special needs children and placed the child with them. The father agreed to give up his paternal rights as long as he and his wife could keep in touch with the adoptive family about the baby's health. The outcome could have been very different had Kelley stayed in Connecticut.

People are often confused about the surrogacy laws in Indiana. In Indiana, a court process must be completed to establish parental rights but biological parents prevail in having rights.

Those considering surrogacy should keep in mind that a gestational surrogate has the right to make medical decisions (like abortion) while carrying a child for the biological parents.It is important for all parents pursuing a typical pregnancy, surrogacy or adoption that it is not to have a perfect child. There are no guarantees in life and there are no guarantees with any pregnancy or child.

If you have questions about surrogacy or assisted reproductive law, please contact Harden Jackson Law.

In 2012 I joined the board of directors for a local nonprofit called the Indiana Collaboration for Families with Infertility (ICFI). This organization, founded by a local family and 100% volunteer ran, provides support, resources, and education for families struggling with infertility.

This week ICFI is holding our annual $5 for Families campaign to raise crucial funds to help continue our services. For a donation of only $5 you can help make a difference in the lives of many local families. 100% of the proceeds from this campaign go directly towards ICFI's support services.

You can make your donation online by visiting: http://myicfi.org/for-families/

I appreciate your time and consideration and thank you in advance for your generosity!

Michele Jackson

Press Contact:
Leah Potter
HARDEN JACKSON LLC
11450 N. Meridian, Carmel, IN 46032
Phone: 317.569.0770
Email: lpotter@hardenjacksonlaw.com
Web site: www.hardenjacksonlaw.com

For Immediate Release

ATTORNEY FROM HARDEN JACKSON RECOGNIZED BY SUPER LAWYERS

CARMEL, IN - February 15, 2013 - Founding partner and attorney from Harden Jackson, LLC has been recognized by Super Lawyers for 2013. Attorney Michele Jackson has been named to the "Rising Stars" list as one of the top up-and-coming attorneys in Indiana for 2013.

The selection process for Super Lawyers employs a rigorous, multiphase process. Peer nominations and evaluations are combined with third party research. Each candidate is evaluated on 12 indicators of peer recognition and professional achievement. Selections are made on an annual, state-by-state basis.

Michele Jackson chairs the firm's Adoption and Reproductive Law Practice Group and focuses her practice in domestic and international adoptions as well as reproductive law matters.

Harden Jackson, LLC is a Carmel law firm providing personalized service with a responsive and compassionate approach. As effective and experienced litigators, the attorneys work with clients to develop strategies for negotiating settlements, while always preparing for litigation if necessary. The practice assists clients in all areas of family law, adoption and reproductive law matters. For more information, please contact Leah Potter at 317.569.0770 or www.hardenjacksonlaw.com .

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Press Contact:
Leah Potter
HARDEN JACKSON LLC
11450 N. Meridian, Carmel, IN 46032
Phone: 317.569.0770
Email: lpotter@hardenjacksonlaw.com
Web site: www.hardenjacksonlaw.com

For Immediate Release

MICHELE JACKSON NAMED IN INDIANAPOLIS BUSINESS JOURNAL'S FORTY UNDER 40 CLASS OF 2013

CARMEL, IN - February 7th, 2013 -. Attorney Michele Jackson, who chairs the Harden Jackson Law's Adoption and Reproductive Law Practice Group, received the Indianapolis Business Journal's Forty Under 40 award. The award recognizes professionals younger than 40 years of age for service in their jobs and in the community.

Michele Jackson chairs the firm's Adoption and Reproductive Law Practice Group and focuses her practice in domestic and international adoptions as well as reproductive law matters. Jackson is also the founding Executive Director of MLJ Adoptions, Inc.

In addition to her professional contributions, Jackson also founded the Global Orphan Foundation (formerly the Fatherless Foundation), a not-for-profit organization which raises funds and provides supplies to orphanages world-wide.

Harden Jackson, LLC is a Carmel law firm providing personalized service with a responsive and compassionate approach. As effective and experienced litigators, the attorneys work with clients to develop strategies for negotiating settlements, while always preparing for litigation if necessary. The practice assists clients in all areas of family law, adoption and reproductive law matters. For more information, please contact Leah Potter at 317.569.0770 or www.hardenjacksonlaw.com .

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This story below was reported by Greenbelt Patch in Maryland:

'A Maryland woman has gained custody of nine frozen embryos she created with her ex-husband, according to an attorney working on the case.

Godlove Mbah of Greenbelt and his ex-wife, Honorine Anong of Upper Marlboro, were divorced in May 2012, but disputes have continued over the couple's stored embryos and a 3-year-old daughter previously conceived from one their embryos.

Though Mbah asked to have them destroyed, according to The Daily Record, Maryland Circuit Court Judge John Paul Davey signed an order in December giving sole custody of the embryos to Anong--a first-of-its-kind ruling in Maryland.

Davey found that the commercial contract the couple signed at the Shady Grove Fertility Clinic in July 2008--prior to the procedure--was valid, according to attorneys involved in the case.

That contract said the embryos would be given to Anong in case of a separation. Nataly Mendocilla, Mbah's attorney, argued that her client's signature wasn't notarized.

Although Mbah lost the dispute over the embryos, he was awarded sole custody of the couple's 3-year-old daughter in April after her mother was found "unfit to have custody", Mendocilla said.

However, Mbah's attorney argued that giving Anong custody of the embryos is taking away her client's rights to choose whether or not to father another child.

Anong wants to have more children, Mendocilla said, and now Mbah is obligated to be a parent against his will "with his ex-wife who has lost custody of the one child they do have because of neglect."

Mendocilla believes her client should have equal rights in that decision. Clark contends that her client cannot have children by any other means because her fallopian tubes were removed to help her conceive through in vitro fertilization.

The frozen embryos are the only way Anong can have more children, Clark said.

But Mendocilla argued that it is a matter of public policy.

"If a woman can clearly have an abortion of a known viable fetus, why can we not apply those same laws to a father who does not want to be a parent?" she asked.

Currently, Anong has the right to implant the embryos, although Mbah's attorney has filed a stay to prevent any action pending an appeal.'

Attorney Michele Jackson, who practices Assisted Reproductive Law in Indiana notes that, "Assisted Reproductive medical practitioners may be seeking legal advice for these agreements up front and assume they are doing the right thing. However, it is important these facilities recognize they must have appropriate legal advice regarding the content and effect of clinic consent forms from practitioners who are versed in Assisted Reproductive consents."

Michele Jackson discussing Surrogacy and Assisted Reproductive Law and the laws pertaining to Indiana on Indy Style.

Family Law and Assisted Reproductive Technology

The world’s first ruling on conception has been made by an Australian judge in Brisbane regarding when conception begins. The judge ruled conception only occurred when a fertilized egg was implanted in a woman’s womb – that is, the moment of pregnancy – rather than at the moment the egg was fertilized. The origin of the case deals with an embryo that was created years before the surrogacy arrangement, then frozen and not implanted in the uterus until months after the written arrangement was settled.

This ruling would have no impact on birth through natural conception; however it has a major impact on surrogate parents, and those with children who were born through in-vitro fertilization in Queensland, Australia. Judge Clare's ruling will stop current and future disputes in parenting matters where couples are seeking to have a child through a surrogacy arrangement.

The surrogacy legislation in Australia currently states that when the birth mother (surrogate) assigns parenting control (parenthood) to the surrogate parent/s or intended parents - control has to be signed over before a child is actually "conceived". This leads to why this legislation is so important; it is intended to help people in genuine need of surrogacy and may have embryos from prior infertility treatments.

Brian and Misty Baker had been trying over 10 years to have a child.  After several failed IVF attempts, the couple knew that their next option was a gestational surrogate.  For many couples, finding a surrogate and be a long, painstaking process.  For the Bakers, they were fortunate enough to know exactly who their surrogate would be; Misty’s best friend, Amber.

In September of 2011, the couple, and Amber, went through the IVF process.  Fortunately for them, they ended up with six embryos available for transfer.  The couple chose to have two embryos transferred to Amber (the surrogate) and four embryos transferred to Misty.  Their doctor told them that it would be a long shot for Misty to get pregnant with those embryos; after all, it hadn’t worked the previous times.  However, the couple held out hope.

Two excruciating weeks later, the couple found out that both Misty and Amber were pregnant!  A true miracle had occurred!  Shortly after, they found out the both women are carrying twins.

Now, Misty and Brian are preparing themselves to be parents of quadruplets.  Since the embryos were conceived at the same time, Misty and her surrogate, Amber, are due on the same day.  There are some logistical birth details to work out.  Brian and Misty now live in Seattle, while Amber lives in Indiana.  Brian has committed that if Misty has given birth, he will travel to Indiana to be there when Amber gives birth.  Once the babies are safe to travel, Brian and Misty will bring them home where they will finally realize their dream of having a child times FOUR!  These are four additional reasons that we are so proud to be involved in building families.

The Bakers have been inundated with media attention, here in Indiana and nationally.  Check out their interview on WRTV 6 here.

To follow the Baker’s journey go here.

Have you heard about the Family Act ( S 965/HR 3522) that is before Congress this session?  This bill was introduced in Congress in May of 2011 and if passed, will create a tax credit for the out-of-pocket costs associated with infertility medical treatment.  As you can imagine, this bill could have a major impact for intended parents and may help them overcome some of the financial barriers associated with Infertility.

Infertility groups across the nation have rallied support for this bill.  RESOLVE, the National Infertility Association is taking that a step further.  RESOLVE is sponsoring Advocacy Day on April 25^th, 2012 in Washington D.C.   Participants will spend the day talking to Members of Congress about the disease of Infertility.  The message from RESOLVE is that,  “Congress can help make a difference in the lives of patients battling infertility by making vital medical treatment options more accessible, and strengthening the federal commitment to research that will lead to prevention of and treatments for infertility.”

Once registered, the organization will make appointments with the participants’ Congress person, and then provide training and materials for participants to make the most of their meeting.  Participants will also be paired with other advocates from their state or RESOLVE staff members at these meetings to ensure effective communication of their message.

If you are interested in attending Advocacy day, you may find more information at: http://familybuilding.resolve.org/site/PageServer?pagename=advday_home

Have you heard about the ICFI Fertility and Family Building Fair on April 24th?  Attorney Michele Jackson will be speaking about foster parenting and adoption.

The Fertility and Family Building Fair is the concentrated effort to bring as many local resources together as possible for those working to build their families.  The event will feature local REs and physicians, complementary and alternative medicine practitioners, financial assistance resources, fostering and adoption resources, local organizations dedicated to assisting those on their journey, and five educational presentations .  The event is free to the community and takes place during National Infertility Week.