Navigating Surrogacy

The attorneys at Harden Jackson LLC are dedicated to helping both couples and individuals achieve the dream of building a family. We understand that creating a family through surrogacy may seem daunting.  However, we are eager to provide sound legal representation about an often confusing and emotional area of the law.

WHAT IS SURROGACY?

Surrogacy is a method of reproduction whereby a woman agrees to become pregnant and deliver the child for a contracted party.

A Traditional Surrogate is genetically related to the child she is carrying, as she is both the Egg Donor and the Surrogate.  This option is not a recommended method due to the ethical, medical and legal complications involved.

A Gestational Surrogate has no genetic link to the child she is carrying.  Rather, the egg is provided by either the Intended Mother or an Egg Donor.  To begin a Gestational Surrogacy, the Intended Mother or Egg Donor will participate in an egg retrieval process.  The eggs of the Intended Mother or Egg Donor are then mixed with the sperm of the Intended Father or Sperm Donor to create an embryo.  Finally, one or more of these embryos are implanted within the Gestational Surrogate via In Vitro Fertilization (IVF).

FINDING A SURROGATE, EGG DONOR, AND/OR SPERM DONOR

Generally, Gestational Surrogacy arrangements are set up by Surrogacy and Donation Agencies that match you with a Surrogate, Egg Donor, and/or Sperm Donor.  Should you require the services of an Agency, Surrogate, Egg Donor, and/or Sperm Donor you will enter into a separate contractual relationship with each party.  Harden Jackson LLC works with numerous professionals who specialize in Gestational Surrogacy and Egg/Sperm Donation, and we will gladly refer you to an Agency that meets your needs.  In the event that you are already working with an Agency, we are happy to coordinate with the existing Agency to provide your legal services.

If you have already found a suitable Surrogate, Egg Donor, and/or Sperm Donor, you may choose to proceed without the assistance of an Agency.  This type of arrangement is typically referred to as an Independent Surrogacy.

Keep in mind that Gestational Surrogacy is a complex process which is difficult to accomplish successfully without expert assistance.  Working with an Agency can often reduce stress, as the Agency will find a qualified Surrogate, source an egg and sperm donor (if necessary), guide you through the medical and psychological components, and provide you support.

RESOURCES

Generally, Gestational Surrogacy is a four-pronged process.  Intended Parents typically work with an attorney, a counseling service, a medical provider, and a Surrogacy and Donation Agency.  Before you begin the surrogacy process, understand that you will be faced with legal, psychological, and medical issues.  By entering into these four relationships, you will receive expert assistance in each component of the surrogacy process.  Our office is happy to provide intended parents with a list of recommended counseling, medical, and Agency providers.  Before entering in a contract with an agency and committing sums, we suggest you consult with an attorney at the beginning of the process to have the contract with the agency reviewed prior to execution.

SURROGACY LAW

Surrogacy law is a relatively new field, and we recognize that the laws may seem confusing.  It is important to note that surrogacy laws vary by state.  In fact, surrogacy agreements are prohibited in several states.  Indiana law currently holds that all surrogacy contracts are against public policy and are unenforceable.  However, Indiana law does not prohibit the act of surrogacy itself and recent rulings by the courts in Indiana have been favorable to surrogacy.  It is essential that you consult with an attorney prior to entering into a contract to understand the legal and financial risks associated with the surrogacy process.

Do not enter into an agreement with a Surrogate, Egg Donor, and/or Sperm Donor until you have confirmed the laws of the state in which you, the Surrogate, Egg Donor, and/or Sperm Donor reside

MEDICAL, EMOTIONAL, AND FINANCIAL RISKS

While the surrogacy process is truly thrilling, it is necessary to consider the risks associated with entering into a surrogacy relationship.  There is a possibility that the pregnancy may result in a caesarian section, which may subsequently cause a painful and long recovery for the Surrogate.  Potentially, additional fees may be incurred to compensate the Surrogate for her pain and suffering, as well as for increased medical expenses.

The risk of premature birth or even fetal death is also present.  Further, a variety of other medical expenses may be incurred whereby the Surrogate could be entitled to compensation for medical expenses, as well as pain and suffering.  An example of an added expense is the invasive procedure, amniocentesis, which may cause the Surrogate significant discomfort.  It is important to contemplate these risks and to create a plan for how you might deal with these situations.

RESPONSIBILITIES

As Intended Parents, both you and the Surrogate will have responsibilities associated with the surrogacy relationship.  The Surrogate will be responsible for attending medical appointments and providing you medical release information.  You, in turn, will be responsible for prompt payment of expenses as set forth in the contract.  Further, the Surrogate may be prohibited from engaging in certain activities pursuant to your agreement.  It is advisable to maintain open communication with the Surrogate throughout the various stages of the surrogacy relationship.

If you have any questions on Surrogacy or Egg Donation, please contact our office at 317.569.0770 or www.hardenjacksonlaw.com.

Harden Jackson LLC’s services are focused in Gestational Surrogacy.  We do not assist in contractual arrangements for traditional surrogacy arrangements.  If you are involved in a traditional surrogacy, we will provide legal services for the adoption process.