In recent news, a sperm donor has led to a topic of debate regarding the need to regulate the number of children each sperm donor should be allowed to father. There is growing concern among parents, donors and medical experts about potential negative consequences of having so many children fathered by the same donor, including the possibility that genes for rare diseases could be spread more widely through the population. Another concern is the increased odds of accidental incest between half sisters and half brothers, who often live close to one another.
Critics say that fertility clinics and sperm banks are earning huge profits by allowing too many children to be conceived with sperm from popular donors, and that families should be given more information on the health of donors and the children conceived with their sperm. They also desire legal limits on the number of children conceived using the same donor’s sperm and a re-examination of the anonymity that cloaks many donors.
Although other countries, including Britain, France and Sweden, limit how many children a sperm donor can father, there is no such limit in the United States. There are only guidelines issued by the American Society for Reproductive Medicine (ASRM), a professional group that recommends restricting conceptions by individual donors to 25 births per population of 800,000.
The number of children born through sperm donation is unknown. The estimated number is between 30,000-60,000, perhaps even more. Mothers of donor children are asked to voluntarily report a child’s birth to the sperm bank, but an estimated 20-40% of them actually report the birth. Most families turn to the registry’s web site, donorsiblingregistry.com, for more information about a child’s half brother or half sisters.
The donors are given a number that identifies them and the children or families can look up how many siblings they have if they registered on the website identifying that donor number as their father also.
There are certainly competing interests at stake: the privacy of the sperm donor and the genetic or mental health concerns of the donor child, as well as concerns that the donor’s offspring will be a result of incest relationships and pose health concerns to those fetuses. The question of whose interests win out is still to be decided.
One major issue of liability and child support still remains in many states. Many states do not use the resources of a lawyer with known or unknown sperm donation arrangements. Often the sperm bank (or clinics) use consents and releases to add protection and limit liabilities in the arraignment. In recent years, there has been cases in which sperm donors that did not have a contract or agreement in place, were deemed financially responsible for the child as well as the intended parent(s). While this area of law is still “grey”, it is a hot topic to discuss amongst assisted reproduction professionals (medical and legal). A word to the wise, protect yourself and be sure that the medical facility, doctors, donors and recipients are all aware of the need for legal analysis of the sperm donation arrangement.
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.
December 28th, 2011 | Posted by Leah | Posted in Adoption, Surrogacy
Often, in our business, we meet with clients that are desperate. Desperate to achieve their goal of having a family. Fortunately, we can often help them with their plight to have a child. However, one of the most common obstacles intended parents face is money. Utilizing ”non-traditional” methods to become a parent can range anywhere from $5,000-$40,000. Whether adopting, undergoing In Vitro Fertilization (IVF) or obtaining a surrogate, the cost can often prevent parents from realizing their dream.
However, we’ve seen some creative methods for funding a family. Recently, Jessica and Sean Haley decided to use crowdfunding to finance their IVF treatments. What is crowdfunding? Crowdfunding describes the collective cooperation by people who network and pool their money and other resources together, usually via the Internet, to support efforts initiated by other people or organizations.
After three years of trying to conceive, the Haleys were told they only had a 1% chance of conceiving naturally. In June, the couple started a “Help the Haleys Have a Baby” campaign on IndieGoGo to raise funds for their fertility treatments. The campaign managed to raise $8,050, far above the $5,000 they were asking for initially. In July, the couple began IVF treatments that led to Jessica being pregnant. The Haleys aren’t the only couples turning to this crowdfunding option. A quick search on the IndieGoGo website lists over 20 couples and singles requesting funds to help them achieve their dream of having a family.
We love to hear of these creative funding ideas. When money is not an issue it removes at least one obstacle from the path for intended parents and our goal is to make that path as smooth as possible.
An article published September 5, 2011 in the New York Times addresses emerging concerns for multiple children born to a single donor. It’s an issue that will only become more common as an increasing number of single or same sex parents turn to donors to conceive children.
As children born from donors age and begin dating, the nature of their parentage presents a rather awkward scenario – in the event two young adults who happen to be born from donors meet and find themselves attracted to one another, they inevitably will have to compare their donor numbers to make sure they aren’t half-siblings. It’s the stuff that seems like a plot of some contrived Lifetime Network Movie, but it’s a reality for those who were born during the earlier days of alternative reproductive technology and are now old enough to be dating.
Estimates for the number of children born using sperms donors vary from 30,000-60,000 per year. The NY Times article was spurred by the story of a Washington woman who used a sperm donor to conceive a child seven years ago. She started a web registry to track the half-siblings of her child. With donor children, it is not uncommon for a child to have as many as a dozen siblings, but in the case of Ms. Daily’s child, the number of siblings on the registry kept growing, now totaling 150. That number is alarming to many health care and legal professionals who work in assisted reproductive technology. It’s a frightening statistic showing that agencies are profiting significantly from popular donors with little regard to the long-term consequences of producing so many children who are related. Not only is there the concern for an accidental incestual relationship among sibling offspring, but the frightening possibility that genes for rare diseases could be more easily spread through the population.
While 150 is the highest number of offspring tracked from one donor, results show that it is not uncommon for as many as 50 children to be born from a donor. This number exceeds the industry’s recommended guidelines, but those guidelines are not law and there is little in the way of oversight or legislation to restrict the use of popular donors. Industry regulations and practices in countries such as Britain, France and Sweden restrict the number of children that can be born of a single donor to 10. However, alternative reproductive law regulations still vary greatly from state to state in the US, and the variation or lack of regulation creates confusion and allows for unethical practices. Another statistic that does not bode well for the accuracy of information for the number of children in the US born to a donor is that less than 40% of parents who use a donor register their child’s donor number – it’s a voluntary practice that isn’t required or regulated. Nor do all parents tell their children the circumstances of their conception – which creates an even bigger dilemma.
Curious about the latest legal news affecting surrogacy, donors and assisted reproductive technology in Indiana? Read JHDJ Law’s newsletter by selecting the highlighted link below. Editions will be published quarterly and interested parties can subscribe to the newsletter by emailing Lynn Mullins-Owens at lowens@jhdj-law.com
Also, two new pages have been added under the Surrogacy Practice heading on the JHDJ Law website. If you are confused by all of the alphabet jargon and complex terminology used in assisted reproductive technology (or wonder what that even means), our latest page provides definitions to terms commonly used by medical and legal professionals in infertility and reproduction.
Attorney Michele Jackson recently returned from the American Bar Association’s (ABA) annual Family Law Conference which was held April 6-9, 2011. The conference was the first time the ABA has offered a section of seminars specifically to address Assisted Reproductive Technology (ART) and its impact on an ever-changing legal landscape.
There are no national policies or laws governing ART and legislation varies widely state to state. Some states are “surrogacy-friendly” such as Illinois, which have clear, defined legislation regarding the process. Some states expressly prohibit surrogacy contracts, making it a criminal act (Michigan, for example), while states such as Indiana and Ohio lack legislation but rely upon case law and other areas of law (paternity, adoption and contracts) to determine procedures.
Interest in ART and surrogacy is growing across the country due to medical advances which provide individuals and couples with more choices to grow their families if they are dealing with infertility issues. Despite the rapid growth of demand, legislation has been slow to adapt, due to some controversies dating back more than 20 years years which continue to cause misconceptions about ART and surrogacy. Some reluctance to support surrogacy or ART practices is linked to conservative or religious ideology. Because of the disparity in the obvious demand for legal services to protect parties and lack of coherent practices, the ABA has spearheaded new legal education to involve attorneys across the US who are interested in developing ART-oriented practices.
At the annual conference, Jackson found that she is one of the few attorneys who had actual experience in working with surrogacy clients. She said many of the attorneys attending the conference had not yet handled surrogacy or ART cases, but were eager to learn due to the growth in demand for services. The seminar topics covered diverse issues, from drafting legal agreements for donors and surrogates to insurance issues. A sample of the seminars:
How do Clinic Consent Forms, Written Legal Agreements, and Standard State Percentage Laws Interact in Third Party Reproduction?
What happens When the Legal System and ART Law Intersect?
Oh, What a Relief It Is: An Analysis of Insurance Issues in Surrogacy
Jackson points out that because there has been lack of legislation, many fertility doctors (a/k/a REI doctors) and clinics have crafted their own forms, consents and agreements to provide to ART patients and clients. Unfortunately, many of those consent forms don’t fully protect the donors or surrogacy patients or intended parents. The consent forms may be incomplete or not fully compliant with some areas of a particular state’s laws. Jackson understands why clinics have created the consent forms, but sees a significant need for cooperation between clinics/REI doctors and attorneys representing ART clients to make sure that agreements meet legal requirements so that all parties’ interests are protected. Simply put, the consent forms aren’t enough to address the full legal ramifications associated with ART.
Jackson shared that there were some consistent messages among the attorneys attending the ABA conference on ways to address inconsistencies in an area that is rapidly changing and developing. ART will continue to impact legislation and more courts will see surrogacy agreements, parentage documents or litigation resulting from ART because people will increasingly pursue third party reproduction to have children. Surrogacy contracts limit the chaos, because clear written intent limits liability and mitigates adverse actions. Jackson is also quick to point out that while so much of the focus is on the intended parents or surrogates, the reality is that children are born from ART and that the priority should always be on protecting the children’s best interests.
The Indiana Court of Appeals was divided rendering an opinion in a case establishing paternity and child support obligations for children conceived by artificial insemination. This latest ruling reveals the lack of legislation or case law for judges to use in determining issues related to alternative reproduction. With a growing demand for alternatives to pregnancy including A.I. and surrogacy, the findings in this case will affect how attorneys advise clients contemplating contracts for alternative reproduction matters.
In the instant case, the biological mother was in a long-term same-sex relationship and entered into an agreement with a man (identified as W.M.) to donate his sperm so she could conceive a child. A contract was drawn up as a donor agreement indicating the donor father would not be responsible for the child in any way and would have no parental rights.
Mother subsequently had 2 children conceived with donor father’s sperm. Mother’s relationship with her partner later ended and she sought financial assistance and support. The Fayette County prosecutor’s office filed a petition to establish paternity and Mother asserted that the donor agreement was invalid because it “ran afoul of public policy”. However, the trial court denied to the petition to establish paternity of the children based on the contract terms of the donor agreement. Mother appealed.
In Paternity of M.F., et al.; J.F. v. W.M., No. 21A04-1002-JP-84, Court of Appeals Judges Ezra Friedlander and Michael Barnes affirmed the trial court’s decision in regards to the older child. Because there is very little case law on the issue regarding donor agreements and artificial insemination, the COA relied on Jhordan v. Mary K., 224 Cal. Rptr. 530 (Cal. Ct. App. 1986), which the Indiana Supreme Court cited in Straub v. B.M.T. by Todd, 645 N.E.2d 597 (Ind. 1994). An underlying factor upholding the contract between a donor and recipient is the involvement of a licensed physician in the insemination process. The contract is invalid if the child is conceived through intercourse, regardless of an agreement between the parties.
In this case, the manner of insemination and conception was disputed by the parties. The majority of the judges determined that Mother held the burden to prove the manner of conception. The judges found that Mother failed to prove that the manner in which she was inseminated for the eldest child would void the contract law and render the donor agreement unenforceable.
Judge Terry Crone dissented regarding which party held the burden of proof, arguing that the father must bear the burden as the one trying to avoid his support obligation. Judge Crone did agree with the majority of the judges that the circumstances affecting enforceability of “assisted conception contracts” must be limited “in order to avoid creating a slippery slope whereby parents could evade their support obligations simply by signing an informal agreement hastily scribbled on a sheet of paper.”
The COA’s ruling does indicate an attempt by the court to prevent incomplete, impetuous or informal donor agreements absolving a father of any responsibility. First, a physician must be involved in the process of artificial insemination, and the agreement must show the parties’ careful consideration of the implications of such an agreement, wrote Judge Friedlander. However, the COA declined to specify any minimum requirements for a donor agreement.
As for the ruling regarding the youngest child conceived by the parties, the judges all agreed that the trial court erred in denying the petition to establish paternity. This is significant because the opinion focused on the language in the contract, indicating the agreement contained ambiguous language that did not apply to future children. The COA remanded with instructions to grant Mother’s petition to establish paternity for the younger child. Therefore, while the judges found the donor had no obligation regarding the eldest child due to the contract, they found that the contract did not apply to the youngest child because of the ambiguous language. This ruling is significant in that the donor is ultimately financially responsible for the child and will have an opportunity to establish parental rights through the paternity action if he chooses to exercise them.
On October 12, 2010 from 5-7 pm, Adoption & Reproductive Law Attorney Michele Jackson is hosting a Fundraising Event to support the reelection campaign of Indiana State Senator Tim Lanane of District 25. The event is also designed to focus attention on legal and health issues affecting Hoosier women, including domestic violence, sexual assault, adoption, surrogacy and family law matters. Senator Lanane has worked to support bills that have positively affected women and families in Indiana. Last year, he received the “Patient Advocate of the Year” award from the Indiana State Medical Association for his work on domestic violence and sexual assault issues. In 2005, Senator Lanane was also recognized as “Legislator of the Year” by the Indiana Coalition Against Domestic Violence (“ICADV”). At JHDJ Law, our family law practice fully understands the impact domestic violence has on Indiana families and we support education and awareness initiatives. Senator Lanane will talk with guests at the fundraiser about his campaign and the key issues he believes affect all Hoosiers including jobs, education, and public safety.
In addition to his work on domestic violence issues, Senator Lanane is the Assistant Minority Leader of the Indiana State Senate and serves on the following legislative committees:
At the event, you will also be able to meet members of Jocham Harden Dimick Jackson and learn about reproductive law and how changes could enable more families to build their families through adoption and surrogacy. Others attending include members of the Indiana Coalition Against Domestic Violence and area fertility clinics.
Join us for beverages and light hors d’ouevres at our law firm:
JOCHAM HARDEN DIMICK JACKSON, PC11450 N. MERIDIAN STREET, SUITE 200CARMEL, IN 46032
April 20th, 2010 | Posted by Leah | Posted in Surrogacy
For the original version of this blog, please visit: Grown In My Heart
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Wondrous and Smart Little People
Surrogacy — By Sabrina on April 20, 2010 at 8:00 am
“How could you do this to your kids?” or some version of it flies past the ears of every surrogate at one point or another. The world in general, it seems, thinks it is within the bounds of acceptability to challenge our parenting skills when enlightened to the fact that we grow babies for other people, then give them away. But our children… oh, our children are wondrous and smart little people.
When I first explained my first surrogacy to my nearly 4 year old daughter, I was 20 weeks pregnant with twins. We had just gotten back from the big gender ultrasound and I’d decided it was time to let her in on the news that I’d waited to share it till the movements of the girls in my belly were big and easy to show others. We laid down on my bed to watch a cartoon together, and I started talking.
“Daughter…. do you want to know a fun secret surprise??!!”
“WHAT IS IT!!!!?” she yelled back.
” Do you see my big belly? It’s so big, isn’t it! Well guess what! You know how ladies can grow babies in their bellies? Like how I grew you? And how boys can’t grow babies in their bellies? Well (my intended father) really wanted to be a daddy. He REALLY wanted to have kids that were all his own. But he CAN’T!!”
“WHY???!!!” she seemed outraged on his behalf. Hearing that in my head still kind of makes me giggle.
“Because he’s a BOY!! And boys can’t carry babies in their bellies, can they?! So guess what. I’m growing his babies for him!! Isn’t that neat! There are two babies in my belly right now! They are two girl babies, and they are his babies! And I will grow them in my belly until they are big enough to come out and go to his house! And maybe he’ll let you hold them when they come out of my belly before they go to their home with their Daddy, won’t that be FUN??!! Then they will be part of his family!”
“Yes! And I can hold them and I can sing to them and I can pat them on the head! SOFTLY!”
“Yes! Maybe you can!”
How simple. Blissfully simple. The girls were born, my kids met them and patted them on the head and took pictures with then… then the girls went home. Not once were my children terrified that I was going to give them away. Not once were they confused or convinced that I’d just given their sisters to someone else. Smart little people, they grasp the facts without all of that muddled emotion that adults tend to heap on top of simple information. These weren’t our babies. They were never our babies. Facts. Just because they grew in my belly doesn’t make them mine; ours. Facts. And children, oh how they thrive on the facts. Wondrous, smart little people.
Last summer the movie UP came out in theatres. We saw it as a family shortly after our in person meeting with my current intended parents. There is a part in the movie where the married couple learns that they can’t have children and the woman is shown sitting sadly in her front yard coming to peace with it. My smart little girl leaned over to me and whispered her question,
“Why is that lady sad?”
“Well, she’s sad because she wants a baby very much, but the doctor told her that she couldn’t have one.”
“Just like Miss J?” ( my Intended Mother)
“Yes, just like Miss J.”
“Is Miss J sad like that lady?”
“I’m sure she is.”
“Well Mama, couldn’t you just grow a baby for her? YOUR tummy isn’t broken!”
Simple. Wondrous. How could I do this to my kids? With ease. My children are growing to be so much more compassionate and empathetic because of this experience we are living as a family. So much more accepting then the adults with raised eyebrows that surround them. I couldn’t be more proud.