Recently in Surrogacy Category

France to Legally Recognize Children Born Abroad Through Surrogacy

July 10, 2015

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The Cour de cassation, France's highest court, ruled last week to legally recognize children born abroad through surrogacy. The decision stems from two cases where the respective fathers sought birth certificates for their children born to surrogates in Russia.

The ruling legally connects the children to their parents, and registers them as French citizens. France did not previously recognize the children's foreign birth certificates, and they were unable to obtain identification cards, French passports, state health care, and other services to which French citizens are entitled. Children born to surrogates abroad are now granted the same legal rights as French-born children. Although surrogacy remains illegal in France, this holding remedies the situation of children stuck in legal limbo as a result of France's failure to grant them legal recognition.

The court's decision follows several recent European rulings that have been favorable to surrogacy. In December 2014, Germany's highest court ordered Germany to legally recognize children born through surrogacy. The European Court of Human Rights issued two similar rulings in June 2014. Stay tuned to our blog for more updates in the evolving field of surrogacy law.

The attorneys of Harden Jackson Law are devoted to servicing clients throughout the Indianapolis area and the state of Indiana in all areas family law, including divorce, custody, child support, property division, paternity, post-divorce modifications, prenuptial and postnuptial agreements, simple wills, adoption, surrogacy and other areas of assisted reproductive technology law. For more information, please contact us at 317.569.0770 or www.hardenjacksonlaw.com.

Remember, these blog posts are not meant to be legal advice. You should consult a family law attorney to discuss the specifics of your situation.

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Why Have Gestational Surrogacy Agreements in Indiana?

June 12, 2015

616726_handshake.jpgSurrogacy laws vary by state. Indiana law currently holds that all surrogacy contracts are void and unenforceable. However, Indiana law does not prohibit the act of surrogacy itself, and recent court rulings have been favorable to surrogacy. Indiana has strong case law on the establishment of parentage in the biological parents of a child born through gestational surrogacy (In re Paternity and Maternity of Infant R., 922 N.E.2d 59 (Ind. Ct. App. 2010)). Despite Indiana's antiquated statute, surrogacy agreements are still completed in Indiana for the following reasons:

1. Experienced assisted reproductive professionals require surrogacy agreements. Most physicians and fertility clinics do not permit parties to enter into a surrogacy arrangement without a contract. Mental health specialists and reproductive law attorneys often have a similar requirement.

2. Surrogacy agreements delineate the parties' expectations, liabilities, and responsibilities. Surrogacy contracts provide stability by ensuring that everyone is on the same page. These agreements contain carefully drafted provisions that address every aspect of the surrogacy, from confidentiality to the payment schedule. They also foster accountability among the parties. Additionally, surrogacy contracts diminish the potential for disputes, as parties can refer to the agreement for guidance in the event of an uncertainty.

3. There is potential for enforceability in Indiana. Very little guidance from the courts exists regarding enforceability. Therefore, certain provisions may be enforceable under Indiana law based upon equity, performance, and the best interests of the child. Surrogacy agreements typically contain a severability clause, which states that if a court invalidates some part(s) of a contract, the remainder of the agreement will be enforceable. Indiana courts may also admit surrogacy contracts as evidence of intent should a dispute arise.

The attorneys of Harden Jackson Law are devoted to servicing clients throughout the Indianapolis area and the state of Indiana in all areas family law, including divorce, custody, child support, property division, paternity, post-divorce modifications, prenuptial and postnuptial agreements, simple wills, adoption, surrogacy and other areas of assisted reproductive technology law. For more information, please contact us at 317.569.0770 or www.hardenjacksonlaw.com.

Remember, these blog posts are not meant to be legal advice. You should consult a family law attorney to discuss the specifics of your situation.


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Tips for Financing Surrogacy

May 15, 2015

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First, it's important to consider the costs involved in surrogacy. Intended Parents typically cover the following expenses:
Medical Procedures: This is likely the most expensive facet of surrogacy. Surrogacy includes in-vitro fertilization (IVF) or artificial insemination, as well as the medication costs that accompany these procedures. Additional expenses include tests, monitoring, and pregnancy care (if the embryo transfer is successful).

Mental Health Expenses: The Intended Parents and the Gestational Surrogate typically undergo mental health assessments prior to entering into a surrogacy arrangement. Many gestational surrogacy agreements also provide the Gestational Surrogate the option to attend several counseling sessions throughout her participation in the surrogacy arrangement.

Legal Expenses: Surrogacy involves two legal processes. The first is a gestational surrogacy agreement that delineates the obligations, rights, and responsibilities of each party. The agreement also contains a payment schedule if the Intended Parents are paying the Gestational Surrogate for her services. Intended Parents also pay for an attorney to review the agreement on the Gestational Surrogate's behalf, unless she chooses to waive this right. Both parties negotiate the terms of the agreement until they are comfortable signing it. The second legal process is the establishment of parentage. This involves petitioning the court to issue an order stating that the Intended Parents are the child's legal parents.

Agency Fees: While not required, Intended Parents may choose to navigate the surrogacy process using an agency. Agencies provide a multitude of services to facilitate the surrogacy arrangement. Agency costs vary depending upon the agency.

Gestational Surrogate Compensation: Intended Parents may enter into a surrogacy arrangement where they compensate the Gestational Surrogate for her services. Intended Parents should first consult with an attorney to ensure surrogacy compensation is legal in their state. The amount Intended Parents will pay the Gestational Surrogate is typically negotiated by the parties during the agreement drafting phase or by the agency.

Second, Intended Parents should reflect upon the available financial options, including those listed below:
Agency Payment Plan: Some agencies provide financing programs where Intended Parents can create payment plans and make payments in intervals.

IVF Grants: A quick Google search for "IVF Grants" will reveal various grants and scholarships that Intended Parents can apply for to help fund their surrogacy journey.

Infertility Loans: Financial providers exist that offer loans specifically for fertility treatment. Eligibility for these loans is based on the Intended Parents' credit history.

Home Equity Loans: Intended Parents can obtain a loan based on their home's equity. Keep in mind that a default on the loan may result in the loss of the home.

401(k) Loans: Financial Analyst Mike Anderson of NerdWallet states the following about borrowing against your 401(k) for surrogacy purposes: " Borrowing against your 401(k) is not recommended unless in dire need. The Internal Revenue Service considers it a hardship withdrawal, and financial experts advise that you only borrow against your 401(k) if your financial need cannot be met by any other means. Technically, this financial product is not a loan, and it has no impact on your credit history. However, it can inhibit your contributions to retirement until you've repaid the entire loan."

Crowdfunding: This recent phenomenon permits Intended Parents to create fundraising websites to help offset the costs of surrogacy. Crowdfunding is gaining popularity among individuals seeks fertility treatment, as this article indicates.

The attorneys of Harden Jackson Law are devoted to servicing clients throughout the Indianapolis area and the state of Indiana in all areas family law, including divorce, custody, child support, property division, paternity, post-divorce modifications, prenuptial and postnuptial agreements, simple wills, adoption, surrogacy and other areas of assisted reproductive technology law. For more information, please contact us at 317.569.0770 or www.hardenjacksonlaw.com.

Remember, these blog posts are not meant to be legal advice. You should consult a family law attorney to discuss the specifics of your situation.

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Gestational Surrogacy vs. Traditional Surrogacy

April 17, 2015

bond_with_baby_during_pregnancy.jpgHave you ever wondered what the difference is between gestational surrogacy and traditional surrogacy? The surrogate's genetic contribution is the distinguishing factor between the two classifications. In traditional surrogacy arrangements, the surrogate contributes her egg and is therefore genetically related to the child she is carrying. The intended father supplies the sperm. In contrast, the surrogate has no genetic link to the child in a gestational surrogacy arrangement.

Gestational surrogacy is the newer of the two categories and was first reported in 1985. Gestational surrogacy involves the surrogate mother carrying an embryo created from the genetic material of one or both of the intended parents. If an intended parent is unable to supply their genetic material, they will utilize donor egg or sperm. Gestational surrogacy is considered legally safer than traditional surrogacy, because the child has no biological relation to the gestational surrogate. Gestational surrogacy also poses fewer hurdles to the establishment of legal parentage due to the biological connection between the intended parents and the child.

The shift from traditional surrogacy towards gestational surrogacy was propelled by the Baby M case decided by the New Jersey Supreme Court in 1986, where two families "f[ought] over a baby who belonged to both of them." In Baby M., the surrogate refused to return the child, born through traditional surrogacy, to the biological father and his wife. The embryo was created using the biological father's sperm and the surrogate's egg. The intended parents sued to relinquish the surrogate's parental rights and sought to establish legal parentage in the biological father's wife. However, the New Jersey court ruled that the surrogate was the child's legal mother. The use of traditional surrogacy declined following the outcome of Baby M. Courts' inclination to establish legal parentage due to the genetic link and the accessibility of reproductive technology popularized gestational surrogacy.

The attorneys of Harden Jackson Law are devoted to servicing clients throughout the Indianapolis area and the state of Indiana in all areas family law, including divorce, custody, child support, property division, paternity, post-divorce modifications, prenuptial and postnuptial agreements, simple wills, adoption, surrogacy and other areas of assisted reproductive technology law. For more information, please contact us at 317.569.0770 or www.hardenjacksonlaw.com.

Remember, these blog posts are not meant to be legal advice. You should consult a family law attorney to discuss the specifics of your situation.

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Ireland Cabinet Approves Drafting of Surrogacy Legislation

February 27, 2015

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This week, Ireland's Cabinet gave the green light to continue drafting legislation aimed at regulating surrogacy and assisted reproduction. The proposed Bill for Assisted Human Reproduction and Stem Cell Research will cover surrogacy, embryo donation, gamete donation, and related research areas. The legislation's purpose is to "safeguard the welfare, safety and best interests of children, bring certainty to the area for potential parents, and provide guidance on what is permitted in terms of research." Presently, Irish common law and legislation (such as the Status of Children Act of 1987 and the Civil Registration Act of 2004) do not address surrogacy.

The approval to draft Ireland's first set of laws regarding assisted reproduction comes in the wake of a recent Supreme Court ruling. In late 2014, Ireland's Supreme Court reversed a landmark decision that established legal parentage in the genetic mother. The case involved twins born to a gestational surrogate. The embryos were created using the genetic material of both intended parents. The Supreme Court overturned the High Court's determination that the genetic mother is the legal mother, and ruled that the birth mother (the surrogate) is the children's legal mother. In its opinion, the Supreme Court noted the minimal guidance provided by Irish law in regard to surrogacy arrangements, and emphasized the need for legislation to address such issues.

Ireland is following the model set forth by countries that permit and regulate altruistic (non-commercial) surrogacy, such as Canada, Australia, and the United Kingdom. The legislation will ban commercial surrogacy, but will permit reimbursement for "reasonable expenses." According to Ireland's Minister for Health, Leo Varadkar, the proposed bill will also include a mechanism for transferring legal parentage from the surrogate to the intended parents.

The attorneys of Harden Jackson Law are devoted to servicing clients throughout the Indianapolis area and the state of Indiana in all areas family law, including divorce, custody, child support, property division, paternity, post-divorce modifications, prenuptial and postnuptial agreements, simple wills, adoption, surrogacy and other areas of assisted reproductive technology law. For more information, please contact us at 317.569.0770 or www.hardenjacksonlaw.com.

Remember, these blog posts are not meant to be legal advice. You should consult a family law attorney to discuss the specifics of your situation.

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Milestone Decision by German Court in Surrogacy Case

January 9, 2015

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On December 19th, 2014, the highest court in Germany issued a landmark ruling that recognizes German intended parents as the legal parents of children born through surrogacy. The case involved a same-sex couple whose child was born through a surrogate in California. A California court issued a decision that the couple was the legal parents of the child. Upon their return to Germany, the couple petitioned the Berlin courts for a birth certificate listing them as the child's parents. However, this request was denied because under German law, the California surrogate was considered the child's mother. The couple appealed the decision, and the Berlin appellate court upheld the refusal to recognize the couple as the child's parents. The court reasoned that the California court order was null and void in Germany, where surrogacy agreements are against public policy. The appellate court held that German law superseded; therefore only the woman who gave birth could be the child's legal mother.

The couple further appealed the decision in the Federal Supreme Court, which reversed the previous courts' rulings. The court ordered that the couple be registered as the child's legal parents, reasoning that the California court order requires the presumption of validity under the comity principle and that German courts may not question a foreign court's ruling. The court explained that comity can only be surmounted if the foreign ruling is incompatible with the basic principles of German law. Although German law prohibits surrogacy, the court established that a child born through surrogacy did not control the circumstances of its birth and is entitled to have legal parents. The court also reasoned that denying the couple legal parentage would be incompatible with basic human rights, as the child's mother is not recognized as such in her jurisdiction and is not prepared to take responsibility for the child.

While Intended Parents are still unable to legally pursue surrogacy in Germany, the ruling may generate a more positive regard toward surrogacy and potentially encourage legislative changes.

The attorneys of Harden Jackson Law are devoted to servicing clients throughout the Indianapolis area and the state of Indiana in all areas family law, including divorce, custody, child support, property division, paternity, post-divorce modifications, prenuptial and postnuptial agreements, simple wills, adoption, surrogacy and other areas of assisted reproductive technology law. For more information, please contact Leah Potter at 317.569.0770 or www.hardenjacksonlaw.com.

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

Biological Dads Denied Names on Birth Certificate

June 26, 2014

same sex couple babies.jpgWhen a gay couple in Texas was denied the ability to place their names on their newborn children's birth certificates, the news story went viral. Jason Hanna and Joe Riggs, whose twin boys were born through a gestational surrogate, are each the biological father of one of the babies. However, neither of their names is listed on the boys' birth certificates, nor were they allowed to proceed with their second-parent adoption. Their petition to remove the surrogate's name from the birth certificate, place their names on the birth certificates, and adopt each other's biological child was denied. The surrogate, who has no biological ties to the children as the couple used an egg donor, is the only name on each birth certificate. Texas's ban on same-sex marriage was cited as the reason for the decision. Although ruled unconstitutional last February, the decision was stayed pending appeal and judges can use their discretion in these cases. Texas law requires a second-parent adoption to be between two legally married people. Although Hanna and Riggs were legally married in Washington D.C., the state of Texas does not recognize their marriage and denied their petition for a second-parent adoption. According to the Gay and Lesbian Alliance Against Defamation (GLAAD), Texas and 17 other states have "unclear" laws regarding LGBT adoption and allow judges to have discretion to decide if LGBT parents can adopt. Regardless of Texas' stance on same-sex marriage, it is unclear as to why the judge denied the petitions for each father to be listed on his biological child's birth certificate.

Indiana is one of the few states that explicitly authorize same sex couples to petition for second-parent adoptions. Along with California, Delaware, Illinois, Iowa, Maine, Massachusetts, New Jersey, New York, Pennsylvania, Vermont, and the District of Columbia, Indiana recognizes second-parent adoptions for same-sex couples through precedent-setting rulings at the state court level. Connecticut, Colorado, and Vermont allow second-parent adoptions by statute. Indiana law also does not prohibit individuals from adoption based on their sexual orientation. Therefore, LGBT individuals may petition to adopt, and same-sex couples may jointly petition to adopt.

The attorneys at Harden Jackson have a great deal of experience helping couples in their family building journey, in addition to assisting clients in all areas of family law, adoption, and reproductive law matters. For more information, please contact our office at 317.569.0770 or www.hardenjacksonlaw.com.

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

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Indianapolis mother shares her infertility struggle in new book

February 7, 2014

about-the-author.jpgIndianapolis mother and former client of Harden Jackson opens up about her infertility struggles and journey to becoming a parent in her new book, When It's Not As Simple As The Birds And The Bees. Sandhya Graves wrote this book to make sense of the complex emotions and difficult steps involved in creating a family.
Graves and her husband explored all options when encountered with infertility, including adoption, in-vitro fertilization and surrogacy. Graves' memoir is an honest and raw account of the heartbreaks, disappointments and the ultimate triumph to have children. "In this personal memoir, I share the intimate and heart-wrenching details of fertility procedures," Graves explains. "Despite the emotional turmoil that comes with infertility, multiple IVF attempts and miscarriages, this book is about the hope that kept us going and how we survived every day until we made our dreams come true."
Sandhya M. Graves lives in Indianapolis, Indiana with her husband Tyler and their three children, Wyatt, Nolan and Lily. You can learn more about the author and the book here. Also, you can buy a copy of the book here.

Congratulations Sandhya and Tyler!

Financing Surrogacy - Options for building your family

October 24, 2013

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Families facing infertility have a variety of options to build their family. We assist families with the legal process of building their families through adoption and assisted reproductive technology. There are extensive costs that come with these options. We often get questions from potential clients about how to afford these processes. There are different financial options to assist families with the financial burden.

Specifically, when looking at your options for creating and building your family, surrogacy should not be ruled out because of the expenses. Although the process can cost at least $60,000, there are many options for families to finance and afford the hefty price tag of choosing surrogacy.

Different types and circumstances of surrogacy can shift the costs. For example, a traditional surrogacy may be less expensive because there is no need for in vitro fertilization which increases the costs. Gestational surrogacy can cost more due to the in vitro aspect. Other costs that vary for each family can be whether a surrogacy agency is used, legal expenses, if insurance will cover certain costs, the surrogate's need for maternity clothes, daycare costs, cleaning services, travel expenses, lost wages, life insurance policy, and many other considerations.

Two options that can be looked at to help finance the surrogacy are loans or grants. A home equity loan, a 401(k) loan, or even financing a loan through a surrogacy agency should be explored. When looking at borrowing against your home equity, there is an added risk that if you default you could lose your home. It does, however, offer more flexibility than borrowing against your 401(k). If you consider obtaining a 401(k) loan, it is considered a hardship loan and should only be done if no other means is available. It can inhibit your contributions to your retirement until you have repaid the entire loan. Lastly, if you are working with a surrogacy agency, some of them will offer financing programs that should be explored. Speak with a financial advisor about all of these options prior to making a decision because there could be other considerations, including tax consequences. When looking to secure a grant, you must be an eligible candidate. Certain religious, cultural, and sexual orientation affiliations offer grants. You would need to research which grant would be the most appropriate fit.

Check with Resolve, the National Infertility Association. They have information about infertility financing programs, scholarship programs and other financial guides.

Infertility is a confusing and emotional journey. It can be an emotionally draining process which can leave you feeling vulnerable. Educate yourself on what options work best for you. Harden Jackson is dedicated to assisting couples and individuals achieve the dream of building a family through assisted reproductive technology and/or adoption.

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Indiana Court of Appeals: Surrogate can not petition to disestablish maternity

July 16, 2013

By Michele Jackson

Thumbnail image for MLJ headshot.jpgA recent Court of Appeals ruling in Indiana has created some confusion on the Indiana Court's view on establishing parentage in some surrogacy cases. The court ruled that a married woman who acted as a surrogate for another couple cannot petition to disestablish her maternity because it would cause the child to be "declared a child without a mother". The issue arose In the Matter of the Paternity and Maternity of Infant T.

For the past two years in Indiana, I have been successful in petitioning paternity and maternity for an intended father and intended mother based on the case In re Paternity & Maternity of Infant R. While this case was specific to biological parents, it did not prohibit the use of the process when using egg donor or sperm donor and thus I was continually successful in using the same process. However, based upon the recent case, this option may not be possible. It appears from a strict interpretation of this case, if a donor is used, then the gestational surrogate will be the legal mother until an adoption takes place, as the state will not allow for a child to not have a legal mother. While I believe that the courts will continue to accept the petitions for paternity and maternity, even after this decision, I want to make it clear there is a more significant legal risk for intended parents using donors.

I am unclear why the Court was petitioned in this manner regarding a Petition for Paternity and Disestablishment of Maternity. I, personally, do not petition this way. In addition, taking this case up on appeal was likely premature for Indiana.

While I feel this case will definitely affect single males and same sex males wanting to remove gestational surrogates from birth certificates, I am not confident that it will be applied in the court as our firm petitions in a different way than this case. If it is applied, then the parent that is not genetically related would have to adopt the child.

The other possible implication that could result from this case is that pre-birth orders may not be as readily available. Previously, the courts with whom I have worked would establish paternity and maternity through stipulation and affidavits. I am left wondering if the court will now require DNA testing for establishing maternity or paternity (depending on the donor material used).

The case states that the intended father could establish biological parentage through stipulation and affidavits pre-birth, but that to file for maternity, stipulation and affidavits were not sufficient and it needed to be proven by clear and convincing evidence ("The indirect disestablishment of maternity requires a putative mother to petition the court for the establishment of maternity and to prove her maternity by clear and convincing evidence, not simply by affidavit or stipulation" whereas for the father the Court states, "...on questions of paternity our supreme court has made clear that a joint stipulation between the birth mother and the putative father 'constitute[s] sufficient evidence to rebut the presumption.'").

I am disappointed that this case was filed in this manner and then appealed in this manner. I feel that this is a set-back for surrogacy in Indiana when donors are used. However, Infant R. still provides significant precedence for a quick and streamlined way to establish parentage for intended parents that are biologically related to the child. This seems to be stable and solid law in Indiana.

At this time, we are pursuing Indiana legislature to determine if we can create more favorable laws for surrogacy. Prior to this appeal case, it did not seem timely to make this request as surrogacy was quite flexible and we have been able to obtain parentage, even in donor cases.

Do I Need A Lawyer If I Am Using Donor Egg, Donor Sperm or Adopted Embryos?

June 19, 2013

673264_85522744.jpgTwenty years ago there weren't many options other than adoption, sperm donation, and traditional surrogacy for couples who had issues with infertility. Today, there are numerous alternatives to choose from when making a decision to build a family. Since the law is having a difficult time keeping up with the emerging technology, it is important for these families to understand the legal implications when dealing with the different options with assisted reproduction technology.


Donor eggs can be used and fertilized with the intended father's sperm through in-vitro fertilization (IVF) if the intended mother is incapable of utilizing her eggs. The resulting embryo is then transferred into the intended mother (or surrogate) and carried to term.
Embryo adoption occurs when intended parents make use of a cryo-preserved embryo (already fertilized) that was donated by another couple. The donated embryo(s) may be transferred to the intended mother or to a gestational carrier.

In sperm donation, an intended mother (or surrogate if applicable) is inseminated with donor sperm. This can be done through intrauterine insemination (IUI) or in-vitro fertilization (IVF).

State laws governing egg donation and embryo transfer vary. For instance, some specify that a woman who has donated an egg or a couple who has donated an embryo are not the legal parents of any resulting child. Other states recognize the woman who gives birth to a child conceived through ART as that child's legal mother. Similar to egg donors, some states have laws that specify that a sperm donor is not the legal parent of a child conceived through artificial insemination. In other states, the law explicitly recognizes the husband of the intended mother as the child's legal father. In cases where state law does not specify parentage, the donor(s) and the intended parents should draw up a written agreement, in which the donor relinquishes any parental rights.

In Indiana, most fertility doctors will require a legal contract to address the responsibilities of both the Intended/Recipient Parent (IP) and the donor. The contracts provide protection for all parties by detailing compensation and responsibilities and help clarify expectations. As for the legal parentage, Indiana has a statute that explicitly states that the woman that gives birth to the child(ren) is presumed the legal mother. If the woman giving birth is married, her husband is presumed to be the legal father of the child(ren). However, Indiana's case law is favorable to the Intended Parents becoming the legal parents of their biological child(ren) and has been granting pre-birth orders to deal with the statutes presumption of birth mother being legal mother. In the event that a pre-birth order is not obtained, a post-birth order and modification of the birth certificate can be done to name the appropriate parents. Because of Indiana's presumption it is important to speak with an experienced lawyer that deals with this type of law to obtain a court order specifying the intended parents as the legal and biological parents.

For the reason stated above, it is best to obtain a lawyer when you are using donor material because there is much more legal risk in obtaining parentage of the resulting child since there is not a genetic relationship between one of the parents. There may also be some risk to the donor or intended parents that are using a donor. The donor and/or intended parents may try to make contact in the future against the wishes of the other party. Also, their family members may try to pursue a relationship with the child, or the child with the donor's family. It is also a risk that the donor has other offspring in the same geographical location and there is a risk for incest between offspring. These are just a few examples that should be considered when using donor material. In sum, there are many aspects that need to be considered and a lawyer that specializes in reproductive law can address those with you.

If you have questions about egg or sperm donation or any other assisted reproductive technology procedures, Harden Jackson Law is here to help.

Assisted Reproductive Technology - terms you should know

June 13, 2013

1161454_67402672.jpgAssisted reproductive technology (ART) is a general term referring to the third party techniques or medical methods used to achieve pregnancy without insemination by sexual intercourse. The technology is used for a variety of reasons, but the ultimate goal is for individuals and couples to have a child when they otherwise would not been able to do so. The term is used in medical and legal fields and encompasses a number of different subjects and processes.

For any prospective parent, the jargon can be overwhelming, being inundated with unusual abbreviations and complex terminology. To be able to better understand the legal implications and responsibilities in donor agreements and surrogacy contracts, it is important to have a basic understanding of some of the more common terms and procedures. Below are common terms and their definitions to help prospective parents navigate through the ART journey.

  • ASSISTED REPRODUCTIVE TECHNOLOGY (ART) - A group of treatment methods used to improve fertility, which involves collecting the eggs and putting them in direct contact with sperm.
  • COMPENSATION - Payment of any valuable consideration for services in excess of reasonable medical and ancillary costs
  • CONCEPTION - The fertilization of an egg by sperm that leads to the creation of a baby.
  • CONGENITAL - Conditions present from birth, either hereditary or environmental.
  • CRYOPRESERVATION - The process of freezing tissues or cells and then storing them in liquid nitrogen at very low temperatures. This process is used to store sperm, embryos, and unfertilized eggs. They are stored in small vials or straws that can last for decades.
  • DONOR - An individual who contributes a gamete or gametes for the purpose of in vitro fertilization or implantation in another.
  • DONOR INSEMINATION (DI) - A type of artificial insemination using sperm not from the male partner or husband.
  • DONOR SPERM - Semen specimens donated and used in an ART procedure.
  • EGG DONATION - Process in which eggs from a fertile woman are donated to an infertile woman for use in an ART procedure.
  • EGG RETRIEVAL - A procedure used to collect eggs from a woman's follicles for use in IVF, usually performed with ultrasound-directed needle aspiration during IVF.
  • EMBRYO - A term that describes the time from fertilization of the egg until the first few weeks of pregnancy.
  • EMBRYO FREEZING - See Cyropreservation
  • EMBRYO TRANSFER - Placing an embryo into a woman's uterus or into the fallopian tube after IVF.
  • FERTILITY CLINIC - A program of fertility specialists offering a range of fertility services, usually including ART.
  • FERTILITY DRUGS - A group of drugs given to women to improve fertility. Fertility drugs are also used to treat some men with male factor infertility.
  • FERTILITY SPECIALIST - A doctor who specializes in the diagnosis and treatment of infertility.
  • FERTILIZATION - Penetration of the egg by the sperm cell.
  • FETAL REDUCTION - A technique that reduces the number of fetuses in a multifetal pregnancy to reduce the risks of multiple pregnancy.
  • FETUS - A term used to describe human in utero development, from the period of time when the embryo is fully formed at around 8 weeks, until birth.
  • GAMETE - Either a sperm or an egg.
  • GESTATION - The medical term for pregnancy

Harden Jackson Law can assist you with consultation, preparation, negotiation and review of any consents, contracts, arrangements or parentage documents related to ART processes and surrogacy.


Questions to consider when using a surrogate - Part 2 of 2

May 21, 2013

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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.

Questions to consider when using a surrogate - Part 1

May 14, 2013

Thumbnail image for 1252251_maternity_photos.jpgSurrogacy 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.

Struggling with Infertility?

April 23, 2013

Thumbnail image for 1252251_maternity_photos.jpgThe 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.