capitol-820611_1280-150x150Indiana Representative Robin Shackleford recently introduced House Bill 1059, which would require insurance companies to offer coverage for fertility treatments. This bill was inspired by a local woman‘s public fight to shine light on the fact that infertility affects one in eight women. In virto fertilization is used to help families who struggle with infertility, but with such a high price not all families can afford the service.  Shackleford commented, “I’ve heard a lot of stories where women have literally drained out their 401K. We need to see how we can level the playing field and let it be affordable for everyone.”

One local family, Cher Kimbrough and her partner Samuel traveled out of state to get more affordable fertility treatment. “I found the place in New York and it was $4,000. Right away I thought it was a catch because they are charging $4,000 for the same thing they’re charging 20 grand for in Indy,” Kimbrough commented Even though this family had a happy ending, there are many families that can’t afford this treatment. According to Shackleford, the next step is getting both constituents and insurers together to come to a consensus before the bill is heard by the house insurance committee. Stay tuned to our blog for updates on the developments of this bill.

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.

In late 2016, thekansas-flag-medium-150x150 Shawnee County District court in Kansas issued a significant ruling in November 2016 concerning sperm donors’ responsibility for child support. William Marotta of Topeka, Kansas answered an ad on Craigslist to donate sperm to a same-sex couple, who used the sperm to have a child. The couple later separated and then reached out to the state Department for Children and Families for help when one of the mothers lost her job. The department then filed a suit claiming that Marotta wasn’t paying child support and sought to hold him liable for $6,100 in child support expenses since the child’s birth in December 2009.

Shawnee County District Judge Mary Mattivi ruled that Marotta does not have to provide child support. The department argued that Marotta needed to pay the child support because the two women did not use a physician and Kansas law states that one must be inseminated by a doctor.  Marotta’s attorneys, Tim Schlesinger and Charles Baylor, further argued that the laws are antiquated and have not been updated. Baylor contended, “If the presumptive parent, in this case the non-biological mother, had been a man, they never would have gone after the sperm donor.” Marotta’s attorneys countered that he never had the intentions of being the child’s father nor has he tried to make contact with the couple. The state Department for Children and Families is thinking of appealing the court’s decision.

A key element of Mattivi’s holding is the reasoning that the woman who didn’t give birth to the child is considered the child’s second parent, and the sperm donor is therefore not financially responsible. This ruling is especially meaningful for married same-sex couples, as courts continue to follow the growing trend of extending legal parentage to the non-biological parent. This case also provides guidance on issues surrounding sperm and egg donation, as laws in this area are often lacking or have not yet caught up with the rapid growth of reproductive technology. Stay tuned to the blog for updates on this decision as well as other similar decisions, as the position that non-biological parents in married same-sex couples are considered the child’s legal parents gains traction in courts throughout the United States.

29514799292_07726da703_qFertilityIQ recently released its 2016 list of top businesses to work for as a fertility patient. Criteria to make it on the list include categories such as lifetime treatment maximum, pre-authorization, exclusions, and clinic restrictions. IVF costs are now around $23,050, and only 80% of patients either have all or none of their treatment paid for by their employer. Those patients that had their treatment covered by their employers said they felt a greater sense of loyalty to their employer and stayed in their jobs longer.

Many companies exclude certain add-on treatments that are becoming necessary in the field of fertility treatment. The cost of many of these add-on treatments ranges from $3,000 to $7,000 out of pocket. Companies that do offer fertility benefits sometimes do not promote them, because may be nervous about the potential wide adoption of these benefits.

The list of top 10 companies with fertility benefits are:

5662029278_ea66e0d9bf_qIn 2015, eight female same-sex couples filed a federal lawsuit claiming that Indiana violated their constitutional rights regarding the information on their children’s birth certificates. Until recently, Indiana did not include the non-birth mother or father’s name on the birth certificates of children born into same-sex marriages, and classified these births as “out of wedlock”.  In the 2016 decision, Judge Tanya Walter Pratt of the United States District Court, Southern District of Indiana determined that Indiana law regulating birth certificate documentation violated the equal protection and due process clauses of the Fourteenth Amendment. The judge also ruled that the state cannot classify children born to a birth mother who is married to a same-sex spouse as born out of wedlock.

Weeks after the judgment, the state of Indiana sought to amend the order, raising questions of jurisdiction and asking whether the judgment applies to all wives of all birth mothers, or only to wives of birth mothers who conceived through artificial insemination. The judge refused to amend the decision and said, “The order means what it says and says what it means and the law intends to give wives of birth mothers comparable rights to husbands of birth mothers.” With the Supreme Court declaring same-sex marriage legal in the U.S. just over a year ago, this is another great leap in giving same-sex couples equal rights in parenting. Indiana must now name both same sex-parents on their child’s birth certificate if the parents are married, not just the birth mother.

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.

Spain
Last month, the Supreme Court of Spain issued a landmark ruling that recognizes the right to paid maternity leave for parents of children born through surrogacy. Although gestational surrogacy is illegal in Spain, the Court held that the need to take care of children outweighs any legal barriers set forth by Spain’s surrogacy ban. The decision also extends various rights to mothers of children born through surrogacy, such as a reduced workday for nursing mothers and the right to take one year of unpaid leave after the maternity leave. Spaniards who seek to build their family through surrogacy must go abroad, and two such scenarios, one involving a surrogacy arrangement in the United States and the other in India, set this case in motion.  In October, Spain’s congress also voted to equalize paternity and maternity leave, awarding fathers the same sixteen weeks of paid maternity leave that mothers receive.

The decision comes at a time when the issue of maternity benefits is in the spotlight in the United States.  A New Jersey woman is suing her former employer, Verizon Network Solutions, for denying her paid maternity leave when she had children through surrogacy in 2013. Various arguments exist for both sides of the issue. For example, some posit that since mothers of children born to a gestational surrogate did not give birth, they do not need time to recover physically. This argument is often used to justify the denial of extended paternity leave for fathers. On the other hand, proponents of maternity benefits for mothers of children born through surrogacy contend that a new mom needs time to bond with the baby, especially when she did not carry the child.

Although the Verizon lawsuit is one of the first of its kind (there was a federal lawsuit to claim benefits for paid leave by a woman who had children through surrogacy in 2011, but the case was ultimately dismissed), this issue is likely to become more prevalent as gestational surrogacy continues to grow as a family-building option. Stay tuned to our blog for more discussions on emerging reproductive law issues.

KVPhotoHarden Jackson is pleased to announce that Katherine M. Schwartz has joined the firm’s Adoption and Assisted Reproductive Technology Practice Group.

Katherine earned her Juris Doctor degree magna cum laude from the Indiana University Robert H. McKinney School of Law in 2016, graduating in the top 7% of her class. She also received a certificate in International and Comparative Law. Katherine received her undergraduate degree cum laude from DePauw University in 2013, where she majored in Communications and Romance Languages.

In law school, Katherine served as the Executive Managing Editor of Vol. 26 of the Indiana International and Comparative Law Review, a certified legal intern in IU McKinney’s Health and Human Rights Clinic, a Dean’s Tutorial Society Constitutional Law Fellow, and a member of the Robert H. Staton Intramural Moot Court Competition Board. She participated in the 2014 Staton Moot Court Competition, where she was named to the Order of the Barristers (the top quarter of competitors). Katherine was also recognized as the 2015-2016 Outstanding Legal Clinic Student of the Year.

Phone App
The London Sperm Bank just launched the United Kingdom’s first sperm donor app, nicknamed by news outlets as the “Tinder for Sperm Donors.”  Individuals can use the app to search for sperm donors and order sperm on their phones. The free app , considered the first of its kind, displays donor profiles that describe physical characteristics, medical history, the sperm bank’s staff impressions, and other information (check out this Cosmopolitan article for some examples). Users can set preferences for characteristics such as eye color, hair color, education, and personality, and receive an alert when a donor matching their criteria is available. In contrast to dating apps like Tinder, donor profiles are anonymous and do not contain photos. Donors are vetted by the London Sperm Bank and pay a fee to be listed on the app.

The app has been approved by the Human Fertilisation and Embryology Authority (“HFEA”); the UK’s regulating entity that oversees IVF research, clinics, and procedures. However, the app has also generated some ethical debate. A representative of the Comment on Reproductive Ethics group stated that the app constitutes “trivialisation of parenthood,” equating it to “reproduction via mobile phone.” Meanwhile, the London Sperm Bank issued a statement assuring that “Ordering sperm from an online catalogue or an app does not trivialise treatment, and every step meets the requirements of the HFEA.” Additionally, the scientific director of the London Sperm bank stated “you make all the transactions online, like you do anything else these days. This allows a woman who wants to get a sperm donor to gain control in the privacy of her own home and to choose and decide in her own time.”

We are curious to see the impact of the app and whether other sperm banks follow suit. Has this app revolutionized gamete donation as we know it? Only time will tell. Stay tuned to our blog for more updates on the app as it gains traction among individuals seeking sperm donors.

Workplace
The Dave Thomas Foundation for Adoption recently released its annual “100 Best Adoption-Friendly Workplaces” list. The Foundation has compiled a yearly list of workplaces that offer the best policies for employees growing their families through adoption since 2007. The criteria involve benefits such as financial assistance and paid leave for adoptive families. Employers submit applications and complete surveys, and the Foundation analyzes their data to create the list. The highest amount of financial reimbursement offered by this year’s applicants was $25,000.00, and the longest duration of paid leave was eighteen weeks. The average amount of financial assistance employers offered was $8,000.00, and the average duration of paid leave was five weeks.

Ferring Pharmaceuticals topped the 2016 list, with adoption policies that include reimbursement of up to $25,000.00 in adoption expenses, up to five and a half weeks of paid leave, and adoption counseling resources.  The rest of the top ten is comprised of:

  1. Citizens Bank ($23,460.00 in reimbursement of adoption expenses and 1 week of paid leave);

8-10-09-193-thumb-667x1000-60849As gestational surrogacy continues to increase in the United States, so do opportunities to observe its trends and outcomes. Many states presently permit gestational surrogacy, although the laws vary by state and are rapidly evolving. Researchers from the University of Iowa Hospital and Clinics, Division of Reproductive Endocrinology and Infertility compiled information regarding the below trends arising from the continued practice of gestational surrogacy in the United States:

  • In the past 15 years, the number of gestational carrier cycles has grown by more than 470%.
  • Almost 70% of fertility clinics throughout the country now offer gestational surrogacy.

IVFThe American Society of Reproductive Medicine (“ASRM”) recently issued an Ethics Committee opinion regarding the appropriate terminology for the donation of embryos. The opinion is consistent with the modern sentiment that “embryo donation” is the proper term, rather than “embryo adoption”. The Ethics Committee asserts that using the term “embryo adoption” is inaccurate and misleading, as it “reinforces a conceptualization of the embryo as a fully entitled legal being and may lead to a series of legal proceedings associated with the adoption of born children.”Although the legal status of embryos varies by state, the ASRM affords embryos a “special significance compared with gametes because of their potential to become persons,” but does not consider embryos persons. The committee contrasts embryos with children in an adoption, which relates to the establishment of parentage in “existing children.”

The Committee reasons that conferring embryos the same status as an “existing child” is harmful and can impose unnecessary burdens on embryo recipients. For example, adoption elements such as home studies and judicial proceedings are “appropriately absent” from embryo donation, which is first and foremost a medical process. Additionally, for the last fifteen years, the Committee has taken the position that embryo donation more closely resembles human reproduction than it does adoption. The Committee perceives embryo donation as a “fundamentally medical procedure intended to result in a pregnancy,” thus warranting its distinction from adoption.

Although embryo donation is a medical procedure, it involves legal elements as well. For example, an embryo donation agreement is highly recommended and encouraged. Therefore, it’s imperative that Intended Parents consult with an experienced reproductive law attorney before embarking on this journey.