Recently in Surrogacy Category

Kamakahi v. ASRM Update

March 18, 2016

embryo.jpgLast summer, we blogged about Kamakahi v. ASRM et al., the egg donor price-fixing class action lawsuit. Two former egg donors initiated the federal claim in 2011. The lawsuit alleged that price guidelines followed by fertility clinics violated antitrust laws by limiting the amount of compensation women can receive for their eggs. The guidelines stated that in regard to compensation for egg donors, justification is required for sums of $5,000 or more, and total payments exceeding $10,000 are "not appropriate." The plaintiffs further contended that by agreeing to the guidelines created by the American Society for Reproductive Medicine ("ASRM") and the Society for Assisted Reproductive Technology ("SART"), the fertility industry conspired to restrain trade and fix prices.

Earlier this year, the parties reached a settlement after four years of litigation.The terms of the settlement include the removal of the language stating that "[t]otal payments to donors in excess of $5,000 require justification and sums above $10,000 are not appropriate."The ASRM has also agreed not to make any future dollar amount recommendations for donor compensation. Although the settlement did not result in a monetary award for the class members, they are permitted to file an individual lawsuit to recover damages. The ASRM will also provide $5,000 to each of the four named plaintiffs (Lindsay Kamakahi, Chelsea Kimmel, Justine Levy, and Kristin Wells).

The attorneys of Harden Jackson Law are devoted to servicing clients in all areas of 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 reproductive 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 an attorney to discuss the specifics of your situation.

Dos and Don'ts of Infertility Etiquette

March 11, 2016

Infertility.jpgOne in eight couples experiences infertility in the United States. While infertility awareness is growing, people facing infertility may encounter insensitive and hurtful comments (though not always intentional). A brief refresher on infertility etiquette is a helpful way to minimize these uncomfortable experiences. Read on for some Dos and Don'ts when talking to friends and loved ones experiencing infertility.

Do

Listen. Show them that you care by listening to them if they choose to open up about their infertility struggle. Lend an ear and remain attentive as they share their experience with you.

Don't
Offer unsolicited advice. Infertility is a personal journey, and you may not know what methods and treatments they have pursued.They may be aware of the advice you wish to offer, or they may have already explored that option.

Do
Ask questions about their life. Talk about work, family, friends, and current events. Just because they are experiencing infertility does not meant that you need to avoid talking about your children. The best approach is to ensure your conversations span a variety of topics, and that they don't solely center around children.

Don't

Ask questions about pregnancy, children, or other family-building options. This may seem obvious, as common sense dictates that questions such as "Are you pregnant yet?" are insensitive. However, even questions such as "Why don't you just adopt?" or "Aren't two children enough?" may come across as hurtful.

Do
Understand that declining to attend social functions is not a reflection of how they feel about you. Although everyone deals with infertility differently, they may want space and time to process the pain. They may also want to minimize the chance of being asked uncomfortable questions.

Don't
Complain about your children or your pregnancy. People experiencing infertility yearn for the sleepless nights, messy house, swollen feet, and other pregnancy and child-rearing effects that you may perceive as a hassle.

Do
Know that just because you have not experienced infertility does not mean that you cannot help them. Your support, friendship, and willingness to listen will be indispensable during this difficult time.

The attorneys of Harden Jackson Law are devoted to servicing clients in all areas of 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 reproductive 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 an attorney to discuss the specifics of your situation.
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Legal Parentage in Surrogacy: Where Should I File?

January 22, 2016

Gavel and Earth2.jpgOnce the gestational surrogacy agreement is executed, the legal work is not always complete. Depending on the state, Intended Parents may need to establish their legal parentage in the courts. Intended Parents pursuing this route file pleadings with the court and then obtain a court order declaring their parentage (assuming the court grants their petition). The terms "pre-birth order" or "post-birth order" may come to mind here, and Intended Parents should consult with an attorney to determine what the state's laws permit as well as what type of court order they should seek. This begs the question of where the Intended Parents should file for parentage.

Intended Parents should file for parentage in the state where the child is born. They must complete all of their court pleadings and any other necessary legal documents in accordance with the laws of that state. This is especially important to note for Intended Parents who live in a different state than the Gestational Surrogate. It's imperative that Intended Parents consult with an experienced reproductive law attorney who is familiar with that state's surrogacy laws to assist them with filing for parentage. Remember that surrogacy laws vary among the states, and each state may have different procedures to establish legal parentage.

The attorneys of Harden Jackson Law are devoted to servicing clients in all areas of 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 an attorney to discuss the specifics of your situation.

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Why Estate Planning is Essential for Surrogacy

January 15, 2016

baby hand.jpgWhile a family building journey brings much excitement, it's also important to address the difficult but necessary subject of estate planning. Estate planning documents can prevent the additional stress and disorientation should tragedy afflict the intended parents or the gestational surrogate.

It is highly recommended that the intended parents establish or amend their existing estate planning documents to reflect the child that the gestational surrogate is gestating. This should involve designating a guardian for the child, unequivocally stating the child's legal parentage, and establishing financial support for the child in the event of the intended parents' death. Additionally, if the intended parens have stored cryopreserved embryos or other genetic material, their disposition should be addressed in the estate planning documents (absent a separate disposition agreement).

The gestational surrogate should also establish or amend her existing estate planning documents to reflect the child. This typically involves stating that the child is not biologically related to her and does not inherit from her, and designating the intended parents as guardians of the child in the event of her death. It's also important for the gestational surrogate to execute a document (such as a power of attorney) expressing her desires regarding life support and selecting a designee to carry out her wishes should she become incapacitated during the pregnancy.

Note that surrogacy agreements generally do not carry sufficient legal authority for estate planning purposes. Therefore, intended parent(s) and gestational surrogates should consult with an experienced attorney to draft (or amend) estate planning documents for their assisted reproductive technology needs.

The attorneys of Harden Jackson Law are devoted to servicing clients throughout the Indianapolis area and the state of Indiana in all areas of 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 an attorney to discuss the specifics of your situation.

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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.

Photo credit: HuffingtonPost.com

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.