Articles Tagged with surrogacy

Constitutional
A California woman, Melissa Cook, who agreed to act as a surrogate for a single man, is seeking custody of one of the children after giving birth to triplets. The intended father allegedly requested a reduction, as he only wanted twins. Cook is challenging the constitutionality of a clause in the contract that allegedly allowed the intended father to request a reduction.

Californian law currently permits commercial surrogacy, but Cook is aiming to change that, hoping that the court will deem both the contract and the law unconstitutional. Cook’s lawyer claims that children born through a surrogacy arrangement have a “fundamental right to get to know and love their mother,” and that the current law in California violates that right.

After a state court ruled against her, Cook appealed and is now waiting for a decision. The court will determine whether a surrogate mother has any parental rights and whether commercial surrogacy is constitutional. The court will also consider whether a surrogate may be sued for damages by an intended parent.

when-the-bough-breaks.jpgLast week, one of our staff members went to the movies and saw a trailer for a film called “When the Bough Breaks.” The movie features a married young professional couple unable to conceive naturally, so they decide to pursue surrogacy. They match with a seemingly perfect surrogate and she becomes pregnant with their child. As her pregnancy progresses, she develops an obsession with the intended father, and attempts to seduce him. When he dismisses her advances, she becomes psychotic and threatens to hurt the baby. According to the official synopsis, “the couple becomes caught up in [the surrogate’s] deadly game and must fight to regain control of their future before it’s too late.” Sony Pictures Entertainment is marketing the film as a thriller, using the tagline “Find out how #ItAllWentWrong.” Our staff member was not only appalled by the entire plotline, but also by disturbing scenes such as one where the surrogate dangles a knife over her belly after the intended father rebuffs her advances.

While such plots make for juicy storylines that may attract moviegoers, these depictions of surrogacy are inaccurate and misleading. Surrogacy is normally an overwhelmingly positive experience for both the intended parents and the gestational surrogate. Gestational surrogates are scrupulously screened by agencies. Many fertility clinics require that the intended parents and the surrogate complete a mental health evaluation prior to starting the surrogate’s medications. The parties must usually stipulate in their surrogacy agreement that they have undergone mental health evaluations and that they have discussed the potential psychological risks with a mental health professional. In the unlikely event that something goes wrong, it hardly resembles the plot in “When the Bough Breaks.” More realistic issues that may arise can include disagreements during the contract negotiation phase, pregnancy complications requiring bed rest, or insurance-related uncertainties. Agencies, clinics, physicians, attorneys, social workers, and other professionals work tirelessly to ensure that gestational surrogacy arrangements are based on the underlying principle of good faith. While the emergence of problems in a surrogacy is not inconceivable, the level depicted in “When the Bough Breaks” is extreme and sensationalized.

To those who enjoy thrillers and plan to “find out how #ItAllWentWrong” when the film hits theaters in September, we encourage you to keep in mind that this movie does not accurately represent surrogacy. For an excellent and thought-provoking read on another recent misrepresentation of surrogacy, this time on television, check out this blog post by attorney Rich Vaughn from the International Fertility Law Group.

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


Do

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

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

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

The attorneys of Harden Jackson Law are devoted to servicing clients in all areas of family law, including divorce, custody, child support, property division, paternity, post-divorce modifications, prenuptial and postnuptial agreements, simple wills, adoption, surrogacy and other areas of assisted reproductive technology law. For more information, please contact us at 317.569.0770 or www.hardenjacksonlaw.com.

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.

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The Cour de cassation, France’s highest court, ruled last week to legally recognize children born abroad through surrogacy. The decision stems from two cases where the respective fathers sought birth certificates for their children born to surrogates in Russia.

The ruling legally connects the children to their parents, and registers them as French citizens. France did not previously recognize the children’s foreign birth certificates, and they were unable to obtain identification cards, French passports, state health care, and other services to which French citizens are entitled. Children born to surrogates abroad are now granted the same legal rights as French-born children. Although surrogacy remains illegal in France, this holding remedies the situation of children stuck in legal limbo as a result of France’s failure to grant them legal recognition.

The court’s decision follows several recent European rulings that have been favorable to surrogacy. In December 2014, Germany’s highest court ordered Germany to legally recognize children born through surrogacy. The European Court of Human Rights issued two similar rulings in June 2014. Stay tuned to our blog for more updates in the evolving field of surrogacy law.

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.

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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.

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.

feet_heart.jpgThis 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.