Indiana Family Lawyer Blog

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

Attorney Michele Jackson, who specializes her legal practice in Adoption and Assisted Reproductive Law weighs in on the legal pitfalls in assisted reproduction in Indiana.
In a recent Indiana Court of Appeals case (Engelking v. Engelking) the court was charged with determining if father should pay child support as the parent of two children conceived through artificial insemination during his marriage to Mother. In this case, the father claimed that his six and nine year old children, born while he was married to their mother, were not children of the marriage because they were born via artificial insemination without his knowledge. The mother claims that father did have knowledge of the artificial insemination and father supported both children and treated them as if they were his biological children. The trial court and Court of Appeal both provided findings that supported Mother's claim. Father was ordered to pay child support.
Assisted reproduction used during a marriage to two intending parents should result in parents that have parent rights and obligations. What if the one of the parents does not consent to the assisted reproduction? In most circumstances of the parties being married, both parents would still gain parental rights and obligations. However, in assisted reproduction using the sperm of a donor or the egg of a donor, the donor is often not a legal parent and has not parental rights or obligations and that was the intent of all parties. Be careful though! It is important that all known donors have contracts that specifically indicate intent of the parties. In addition, anonymous donors may also want contracts as well. There are many reasons for the contracts beyond parental rights. There are issues of liabilities and finances that may need to be addressed between the two parties (the donor and the intended parent(s)).
For more information on Assisted Reproductive Technology and the laws in Indiana, contact Michele Jackson at Harden Jackson Law @ 317.569.0770

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.

We recently blogged here about a case before the Supreme Court.  The core issue of the case was whether a child who was conceived via in vitro fertilization after the death of his biological father can receive Social Security benefits as his father’s surviving child (Astrue v. Capato).

In this particular case, Robert Capato deposited semen for storage at a local Sperm Bank in 1999 when he was diagnosed with cancer.  Mr. Capato died in 2002.  In 2003 with the help of in vitro fertilization, his wife, Karen, used his sperm to become pregnant and give birth to twins .  Karen’s application for Social Security survivors benefits for the twins, which the Social Security Administration (SSA) denied, prompted lit­igation that led to the Supreme Court.

The Supreme Court has ruled to uphold the original decision that the children are not eligible for Social Security survivor benefits.  The court cites their reasons as:

1.  The Court defers back to the state law that determined the decision.  Robert Capato resided in Florida at the time of his death and Florida’s intestacy law allows a postmortem child to inherit only if provided for in the decedent’s will.
2. The Court denies Karen Capato’s claim that because of the biology and legal marriage between her and Robert, the children were entitled to his survivor benefits.  The Court noted that being a biological parent does not necessarily determine the inheritance rights (such as in the case of adoption or egg/sperm donor).

The good news is that the Court does recognize that biology is not the only factor in determining parentage.  With the increase of assisted reproductive methods, this designation from the Supreme Court will most definitely come into play again.

The concern of this ruling is that Social Security inheritance rights of children conceived via Assisted Reproductive Technology are still in question and left up to each state.

Read the Supreme Court’s opinion here.

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.

An Indiana woman is claiming she was fired from her Catholic school teaching job for ungergoing in vitro fertilization treatments.  The woman is now suing the diocese  in what could be  a legal showdown over reproductive and religious rights.

Emily Herx's lawsuit accuses the Diocese of Fort Wayne-South Bend and St. Vincent de Paul school in Fort Wayne of discrimination for her terminating her last June. Herx says that the church pastor told her she was a "grave, immoral sinner" and that she should have kept quiet about her fertility treatments because some things are "better left between the individual and God," the complaint said.   The diocese responded  saying it "views the core issue raised in this lawsuit as a challenge to the diocese's right, as a religious employer, to make religious based decisions consistent with its religious standards on an impartial basis."  The Catholic church is against any type of infertility treatments.  In fact, when Herx appealed the termination decision to Fort Wayne Bishop Kevin Rhoades, he told her IVF was “an intrinsic evil, which means that no circumstances can justify it.”

We've posted previously (HERE) about the possibility of discrimination against children conceived via Assisted Reproductive Technology.  Is seems that this now is extending to the potential parents as well.  It will be interesting to follow the case to see what the future holds for Reproductive Rights.

Picture of the week. One of these kids was born using Assisted Reproductive Technology (ART) and one was not.  The chicken or the spider?

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