Recently in Assisted Reproductive Law Category

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

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

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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Kamakahi v. ASRM et al.: The Price of Human Eggs

July 31, 2015

egg donation.jpgKamakahi v. ASRM et al., a putative class action lawsuit filed in 2011, has been making headlines lately. Two former egg donors brought the federal lawsuit, alleging that price guidelines followed by fertility clinics violate antitrust laws by limiting the amount of compensation women can receive for their eggs. The plaintiffs further contend 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. The guidelines presently state that in regard to compensation for egg donors, "sums of $5,000 or more require justification," and "sums above $10,000 are not appropriate." The Northern District of California permitted the case to move forward earlier this year, and it will likely reach the trial stage next year. Below is a summary of the general arguments supporting each side of the lawsuit.

Arguments Supporting Kamakahi
• The pricing guidelines set by the ASRM and the SART, where 90% of the U.S.'s fertility clinics are members, constitute illegal price-fixing. Women are deprived of a free market to compensate them for donating their eggs, permitting fertility clinics to generate large profits for themselves.
• Price caps do not exist for sperm donation, which is less risky and less invasive than egg donation.
• The price caps are sexist and prevent women from undertaking risks if they choose to. Seattle University Law professor Julie Shapiro states in this article: "We don't ban people from cleaning nuclear waste sites because it carries some risk, we allow them to charge more to make up for it."

Arguments Supporting the ASRM and the SART
• Price caps deter coercion and exploitation.
• The purpose of the pricing guidelines is not to generate profits for fertility clinics, but to prevent potential donors from hiding an unfavorable medical history, or taking medical risks they would otherwise avoid.
• The price caps also serve to restrain individuals from paying more money for eggs from donors with certain physical and mental attributes. University of Texas law and bioethics professor John Robertson states in this article that "it's a concern about eugenics, that [people] will pay more for eggs from an Ivy League grad."

Stay tuned to our blog for more updates as this case develops!

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

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.

Photo Credit: Los Angeles Times

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

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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The Legal Status of Frozen Embryos

May 29, 2015

The Sofia Vergara/Nick Loeb frozen embryo dispute has taken the nation by storm. The battle over their frozen embryos begs the question: are embryos persons or property? This blog post will provide a brief overview of the legal status of embryos, as the answer varies throughout the United States.

Courts and state legislatures have categorized embryos into four distinct groups:

1. Persons
The first classification perceives frozen embryos as persons, entitled to all rights conferred to human beings. For example, Louisiana defines an embryo as a "juridical person, with all attendant rights and protections."

2. Property
The second classification categorizes embryos as property. In York v. Jones (1989), the U.S. District Court for the Eastern District of Virginia held that embryos are property.

3. No Rights
The third classification embodies the U.S. Supreme Court's viewpoint expressed in Roe v. Wade (1973) that the term "persons" is inapplicable to the unborn. Under this perspective, embryos do not receive any rights, as rights are accorded after birth.

4. "Special Consideration"
The fourth and increasingly more common classification consists of an intermediate perspective that grants embryos "special consideration." The exact meaning of "special consideration" is presently unclear. This perspective is derived from the Tennessee Supreme Court's articulation in Davis v. Davis (1992) that embryos should receive "special respect due to their potential for human life."

As assisted reproductive technology becomes more widespread, disputes regarding the legal status of embryos are bound to arise. Stay tuned to our blog for updates on developments in reproductive 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

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.

photo credit: John P Clare via photopin cc

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

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

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

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

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.

Photo Credit: Advokids

Embryo donation and Indiana law

August 26, 2014

embryo.jpgHave you ever wondered what happens to frozen embryos that go unused after a woman undergoes in vitro fertilization (IVF) and achieves a successful pregnancy? People with leftover embryos have various options: keeping the embryos frozen, destroying them, allowing them to be used for scientific research, and donating them. Embryo donation is on the rise as a means of conceiving a child to parents who are unable to naturally do so. This process enables a woman to donate her unused embryos to a clinic so another woman can have a child. Embryo donations usually occur anonymously, and require no contact between the donor and the recipient. However, a few clinics exist that encourage communication between the donor and recipient families, giving donors a say in choosing their embryo recipients.

The topic of embryo donation has been surrounded by controversy in recent years, specifically when the Bush Administration funded Nightlife Christian Adoptions' Snowflakes Embryo Adoption Program. The term "embryo adoption" was scrutinized by the assisted reproductive technology community. The American Society for Reproductive Medicine (ASRM)'s Ethics Committee released a report stating that "adoption" refers to "a specific legal procedure that establishes or transfers parentage of existing children." ASRM's report concluded that the use of the term adoption in conjunction with embryos was "inaccurate, misleading, and could place burdens upon infertile recipients and should be avoided," because it equates embryos to the status of children. Therefore, "embryo donation" is the preferred term among the assisted reproductive technology community.

Similar to adoption, embryo donation recipients must undergo a screening process involving an application and a home study. However, unlike adoption, the donation does not need to be finalized in court. Under Indiana law, the woman who gives birth is considered the legal mother and the man she is married to is the legal father. Indiana law is favorable towards embryo donation, and will likely continue to evolve as this practice becomes more common. Although embryo donation does not require court approval, it is important for persons undergoing IVF to include the disposition of any unused embryos in their will. This ensures that those who want to donate their frozen embryos will have their wishes fulfilled in the event of their deaths, and will avoid situations such as this one "What happens to your frozen embryos?"

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

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: John P Clare via photopin cc

National Infertility Awareness Week - RESOLVE to know more

April 22, 2014

National Infertility Awareness Week® (NIAW) is a movement that began in 1989. The goal of NIAW is to raise awareness about the disease of infertility and encourage the public to understand their reproductive health.
RESOLVE: The National Infertility Association founded this movement and continues to work with the professional family building community, corporate partners, and the media to:

  • ensure that people trying to conceive know the guidelines for seeing a specialist when they are trying to conceive.

  • enhance public understanding that infertility is a disease that needs and deserves attention.

  • educate legislators about the disease of infertility and how it impacts people in their state.

In 2010 National Infertility Awareness Week became a federally recognized health observance by the Department of Health and Human Services.This year RESOLVE is urging the infertility community to spread the message "Resolve to know more." Resolve to know more about all your family building options.

RESOLVE's Infertility Etiquette

Chances are, you know someone who is struggling with infertility. More than seven million people of childbearing age in the United States experience infertility. Yet, as a society, we are woefully uninformed about how to best provide emotional support for our loved ones during this painful time.

Infertility is, indeed, a very painful struggle. The pain is similar to the grief over losing a loved one, but it is unique because it is a recurring grief. When a loved one dies, he isn't coming back. There is no hope that he will come back from the dead. You must work through the stages of grief, accept that you will never see this person again, and move on with your life.

The grief of infertility is not so cut and dry. Infertile people grieve the loss of the baby that they may never know. They grieve the loss of that baby who would have had mommy's nose and daddy's eyes. But, each month, there is the hope that maybe that baby will be conceived after all. No matter how hard they try to prepare themselves for bad news, they still hope that this month will be different. Then, the bad news comes again, and the grief washes over the infertile couple anew. This process happens month after month, year after year. It is like having a deep cut that keeps getting opened right when it starts to heal.

As the couple moves into infertility treatments, the pain increases while the bank account depletes. The tests are invasive and embarrassing to both parties, and you feel like the doctor has taken over your bedroom. And for all of this discomfort, you pay a lot of money.

A couple will eventually resolve the infertility problem in one of three ways:

They will eventually conceive a baby.
They will stop the infertility treatments and choose to live without children.
They will find an alternative way to parent, such as by adopting a child or becoming a foster parent.
Reaching a resolution can take years, so your infertile loved ones need your emotional support during this journey. Most people don't know what to say, so they wind up saying the wrong thing, which only makes the journey so much harder for their loved ones. Knowing what not to say is half of the battle to providing support.

Don't Tell Them to Relax

Everyone knows someone who had trouble conceiving but then finally became pregnant once she "relaxed." Couples who are able to conceive after a few months of "relaxing" are not infertile. By definition, a couple is not diagnosed as "infertile" until they have tried unsuccessfully to become pregnant for a full year. In fact, most infertility specialists will not treat a couple for infertility until they have tried to become pregnant for a year. This year weeds out the people who aren't infertile but just need to "relax." Those that remain are truly infertile.

Comments such as "just relax" or "try going on a cruise" create even more stress for the infertile couple, particularly the woman. The woman feels like she is doing something wrong when, in fact, there is a good chance that there is a physical problem preventing her from becoming pregnant.

These comments can also reach the point of absurdity. As a couple, my husband and I underwent two surgeries, numerous inseminations, hormone treatments, and four years of poking and prodding by doctors. Yet, people still continued to say things like, "If you just relaxed on a cruise . . ." Infertility is a diagnosable medical problem that must be treated by a doctor, and even with treatment, many couples will NEVER successfully conceive a child. Relaxation itself does not cure medical infertility.

Don't Minimize the Problem

Failure to conceive a baby is a very painful journey. Infertile couples are surrounded by families with children. These couples watch their friends give birth to two or three children, and they watch those children grow while the couple goes home to the silence of an empty house. These couples see all of the joy that a child brings into someone's life, and they feel the emptiness of not being able to experience the same joy.

Comments like, "Just enjoy being able to sleep late . . . .travel . . etc.," do not offer comfort. Instead, these comments make infertile people feel like you are minimizing their pain. You wouldn't tell somebody whose parent just died to be thankful that he no longer has to buy Father's Day or Mother's Day cards. Losing that one obligation doesn't even begin to compensate for the incredible loss of losing a parent. In the same vein, being able to sleep late or travel does not provide comfort to somebody who desperately wants a child.

Don't Say There Are Worse Things That Could Happen

Along the same lines, don't tell your friend that there are worse things that she could be going through. Who is the final authority on what is the "worst" thing that could happen to someone? Is it going through a divorce? Watching a loved one die? Getting raped? Losing a job?

Different people react to different life experiences in different ways. To someone who has trained his whole life for the Olympics, the "worst" thing might be experiencing an injury the week before the event. To someone who has walked away from her career to become a stay-at-home wife for 40 years, watching her husband leave her for a younger woman might be the "worst" thing. And, to a woman whose sole goal in life has been to love and nurture a child, infertility may indeed be the "worst" thing that could happen.

People wouldn't dream of telling someone whose parent just died, "It could be worse: both of your parents could be dead." Such a comment would be considered cruel rather than comforting. In the same vein, don't tell your friend that she could be going through worse things than infertility.

Don't Say They Aren't Meant to Be Parents

One of the cruelest things anyone ever said to me is, "Maybe God doesn't intend for you to be a mother." How incredibly insensitive to imply that I would be such a bad mother that God felt the need to divinely sterilize me. If God were in the business of divinely sterilizing women, don't you think he would prevent the pregnancies that end in abortions? Or wouldn't he sterilize the women who wind up neglecting and abusing their children? Even if you aren't religious, the "maybe it's not meant to be" comments are not comforting. Infertility is a medical condition, not a punishment from God or Mother Nature.

Don't Ask Why They Aren't Trying IVF

In vitro fertilization (IVF) is a method in which the woman harvests multiple eggs, which are then combined with the man's sperm in a petri dish. This is a method that can produce multiple births. People frequently ask, "Why don't you just try IVF?" in the same casual tone they would use to ask, "Why don't you try shopping at another store?"

Don't Be Crude

It is appalling that I even have to include this paragraph, but some of you need to hear this-Don't make crude jokes about your friend's vulnerable position. Crude comments like "I'll donate the sperm" or "Make sure the doctor uses your sperm for the insemination" are not funny, and they only irritate your friends.

Don't Complain About Your Pregnancy

This message is for pregnant women-Just being around you is painful for your infertile friends. Seeing your belly grow is a constant reminder of what your infertile friend cannot have. Unless an infertile women plans to spend her life in a cave, she has to find a way to interact with pregnant women. However, there are things you can do as her friend to make it easier.

The number one rule is DON'T COMPLAIN ABOUT YOUR PREGNANCY. I understand from my friends that, when you are pregnant, your hormones are going crazy and you experience a lot of discomfort, such as queasiness, stretch marks, and fatigue. You have every right to vent about the discomforts to any one else in your life, but don't put your infertile friend in the position of comforting you.

Your infertile friend would give anything to experience the discomforts you are enduring because those discomforts come from a baby growing inside of you. When I heard a pregnant woman complain about morning sickness, I would think, "I'd gladly throw up for nine straight months if it meant I could have a baby." When a pregnant woman would complain about her weight gain, I would think, "I would cut off my arm if I could be in your shoes."

I managed to go to baby showers and hospitals to welcome my friends' new babies, but it was hard. Without exception, it was hard. Stay sensitive to your infertile friend's emotions, and give her the leeway that she needs to be happy for you while she cries for herself. If she can't bring herself to hold your new baby, give her time. She isn't rejecting you or your new baby; she is just trying to work her way through her pain to show sincere joy for you. The fact that she is willing to endure such pain in order to celebrate your new baby with you speaks volumes about how much your friendship means to her.

Don't Treat Them Like They Are Ignorant

For some reason, some people seem to think that infertility causes a person to become unrealistic about the responsibilities of parenthood. I don't follow the logic, but several people told me that I wouldn't ache for a baby so much if I appreciated how much responsibility was involved in parenting.

Let's face it-no one can fully appreciate the responsibilities involved in parenting until they are, themselves, parents. That is true whether you successfully conceived after one month or after 10 years. The length of time you spend waiting for that baby does not factor in to your appreciation of responsibility. If anything, people who have been trying to become pregnant longer have had more time to think about those responsibilities. They have also probably been around lots of babies as their friends started their families.

Perhaps part of what fuels this perception is that infertile couples have a longer time to "dream" about what being a parent will be like. Like every other couple, we have our fantasies-my child will sleep through the night, would never have a tantrum in public, and will always eat his vegetables. Let us have our fantasies. Those fantasies are some of the few parent-to-be perks that we have-let us have them. You can give us your knowing looks when we discover the truth later.

Don't Gossip About Your Friend's Condition

Infertility treatments are very private and embarrassing, which is why many couples choose to undergo these treatments in secret. Men especially are very sensitive to letting people know about infertility testing, such as sperm counts. Gossiping about infertility is not usually done in a malicious manner. The gossipers are usually well-meaning people who are only trying to find out more about infertility so they can help their loved ones.

Regardless of why you are sharing this information with someone else, it hurts and embarrasses your friend to find out that Madge the bank teller knows what your husband's sperm count is and when your next period is expected. Infertility is something that should be kept as private as your friend wants to keep it. Respect your friend's privacy, and don't share any information that your friend hasn't authorized.

Don't Push Adoption (Yet)

Adoption is a wonderful way for infertile people to become parents. (As an adoptive parent, I can fully vouch for this!!) However, the couple needs to work through many issues before they will be ready to make an adoption decision. Before they can make the decision to love a "stranger's baby," they must first grieve the loss of that baby with Daddy's eyes and Mommy's nose. Adoption social workers recognize the importance of the grieving process. When my husband and I went for our initial adoption interview, we expected the first question to be, "Why do you want to adopt a baby?" Instead, the question was, "Have you grieved the loss of your biological child yet?" Our social worker emphasized how important it is to shut one door before you open another.

You do, indeed, need to grieve this loss before you are ready to start the adoption process. The adoption process is very long and expensive, and it is not an easy road. So, the couple needs to be very sure that they can let go of the hope of a biological child and that they can love an adopted baby. This takes time, and some couples are never able to reach this point. If your friend cannot love a baby that isn't her "own," then adoption isn't the right decision for her, and it is certainly not what is best for the baby.

Mentioning adoption in passing can be a comfort to some couples. (The only words that ever offered me comfort were from my sister, who said, "Whether through pregnancy or adoption, you will be a mother one day.") However, "pushing" the issue can frustrate your friend. So, mention the idea in passing if it seems appropriate, and then drop it. When your friend is ready to talk about adoption, she will raise the issue herself.

So, what can you say to your infertile friends? Unless you say "I am giving you this baby," there is nothing you can say that will erase their pain. So, take that pressure off of yourself. It isn't your job to erase their pain, but there is a lot you can do to lessen the load. Here are a few ideas.

Let Them Know That You Care

The best thing you can do is let your infertile friends know that you care. Send them cards. Let them cry on your shoulder. If they are religious, let them know you are praying for them. Offer the same support you would offer a friend who has lost a loved one. Just knowing they can count on you to be there for them lightens the load and lets them know that they aren't going through this alone.

Remember Them on Mother's Day

With all of the activity on Mother's Day, people tend to forget about women who cannot become mothers. Mother's Day is an incredibly painful time for infertile women. You cannot get away from it-There are ads on the TV, posters at the stores, church sermons devoted to celebrating motherhood, and all of the plans for celebrating with your own mother and mother-in-law.

Mother's Day is an important celebration and one that I relish now that I am a mother. However, it was very painful while I was waiting for my baby. Remember your infertile friends on Mother's Day, and send them a card to let them know you are thinking of them. They will appreciate knowing that you haven't "forgotten" them.

Support Their Decision to Stop Treatments

No couple can endure infertility treatments forever. At some point, they will stop. This is an agonizing decision to make, and it involves even more grief. Even if the couple chooses to adopt a baby, they must still first grieve the loss of that baby who would have had mommy's nose and daddy's eyes.

Once the couple has made the decision to stop treatments, support their decision. Don't encourage them to try again, and don't discourage them from adopting, if that is their choice. Once the couple has reached resolution (whether to live without children, adopt a child, or become foster parents), they can finally put that chapter of their lives behind them. Don't try to open that chapter again.

For more information on what you can do to join in the movement to support National Infertility Awareness Week, click here.

To find out more about your family building options, you can visit Harden Jackson Law here.

What happens to your frozen embryos? Inheritance and Wills

April 3, 2014

fortune.jpgAn important issue surrounding frozen embryos has recently emerged into spotlight: What happens when parents die and leave no will or instructions for the fertility clinic regarding the disposition of their frozen embryos? A Master in Chancery appointed by a Dallas probate court has recommended that a two year old boy, whose parents were murdered, inherit their eleven frozen embryos when he turns eighteen. John Robertson, professor of law at the University of Texas at Austin, addresses the groundbreaking nature of this case in the Harvard Law Petrie-Flom Center Blog by stating that "there are no Texas or United States cases involving inheritance of frozen embryos when both parties have died and left no instructions with the clinic or in a will."

This issue introduces the question of whether frozen embryos are considered "property" in these types of scenarios. Robertson informs us that the Master found that Texas courts have not held them to be property, nor have they found them to be worthless. He reports that as a result, the Master assigned them an implicit value under Texas's intestacy statute since they can be the subject of an enforceable contract. If they embryos are not designated as "property," the Master found that the boy can still retain an "ownership interest" that would give him "dispositional control" over the eleven embryos.

Robertson introduces the complex issues that arise from giving a two year old orphan dispositional control over his future siblings when he turns eighteen, including the "oddity" of asking someone so young to "decide whether to continue paying storage fees, discard [the embryos], or donate to others or to research."

This case illustrates the various complications that ensue when parents who create embryos fail to leave directions for what should occur to their frozen embryos if they both die. Difficult, ethically questionable inquiries such as whether frozen embryos are considered property or what an eighteen year old should do when he receives control over his potential siblings are avoidable. This begs the question as to whether it is the clinic's obligation to mandate that all intended parents create a will prior to creating embryos instructions regarding the embryos' disposition in the event of their death.

photo credit: quinn.anya via photopin cc

Ethical and Legal Dilemmas of Post-humous reproduction

March 14, 2014

ART.jpgAssisted Reproduction Technology has created many alternatives for families with infertility to build their families. However, it has also created many legal issues due to the slow nature of the law to keep up with this rapidly evolving technology. One extremely complex area of this law is dealing with frozen reproductive material that is in storage at a sperm or egg bank after a loved one dies. Examples of legal issues include the legitimacy of the child born, inheritance rights of the child, psychosocial/psychological issues, grieving period prior to deciding when and how to use reproductive material, and the "shelf-life" of the preserved reproductive material.

Recently, a woman in the UK won a court battle to stop her deceased husband's frozen sperm from being destroyed. The husband had sperm frozen before starting cancer treatment and signed paperwork saying his wife could use the sperm after his death. After the husband died, he could no longer update his consent for the sperm to stay in storage so officials sought to destroy it by April 2015. The woman won the right to extend the preservation of the sperm until 2023. The woman has not decided when and if she will use the sperm to have a child.

This story is not that uncommon. There are plenty of situations when individual are faced with the diagnosis of a terminal disease, or another illness that threatens their ability to reproduce so they make plans to have their reproductive material cryopreserved for future use by their significant other. The legal question remains: Did the donor explicitly give consent, simply by donating their material, for future use? What if it is written in a last will and testament?

The law previously addressed these issues by enacting paternity statutes to prevent subsequent children from emerging and claiming that they are entitled to some inheritance money indefinitely. However, now that technology has advanced, these paternity statutes don't necessarily apply. So how does the law handle it in these emerging situations? Indiana allows claims of paternity for up to 11 months after the death of the parent. That would mean the widow(er) would be required to get pregnant within 2 months of the death or the child would lose rights to any inheritance or benefits, as well as possibly losing the ability to establish their heritage through paternity or maternity which could potentially cause psychological issues for the child. However, without these statutes any heirs would not be able to collect their rightful share until the estate is closed. These are examples of the ongoing ethical and legal dilemmas surrounding cryopreservation and posthumous use of reproductive material.

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

Should you have a legal matter regarding Assisted Reproductive Technology, contact an experience attorney. Call Harden Jackson Law at 317.569.0770.

photo credit: WaDaNaBe via photopin cc

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.