"Unauthorized reproduction"

[kandrathe]

I dug into the governments meeting minutes a little deeper and it appears less sinister. The issue being discussed was related to the transfer of parental rights from a surrogate mother impregnated to the eventual "adoptive parents". Maybe even issues like preventing baby farming by rich infertile couples exploiting poor women. It looks like they are trying to update their adoption laws to better accomodate advances in reproductive technologies.

Dr. John Jarrett distributed and reviewed materials dealing with minimum standards, reimbursements for egg donation, and various consent forms used for procedures performed by the Jarrett Infertility Group, including embryo preservation and donation. (See Exhibit 3.)  These consent forms address fees, non-disclosure of anonymous donors, and legal parentage issues. Dr. Jarrett reported that no state requires adherence to the American Society for Reproductive Medicine (ASRM) and the Society for Assisted Reproductive Technology (SART) guidelines, but that some major insurance companies have started requiring compliance. Dr. Jarrett reported that oocyte-sharing procedures are not done by the Jarrett Fertility Group for ethical reasons. The Jarrett Fertility Group also does not destroy embryos.

Dr. James Donahue, a reproductive endocrinologist, introduced himself. (See Exhibit 4.) Dr. Donahue has recently completed a master's degree in Clinical Human Embryology from the University of Leeds in the United Kingdom (UK). He commented that, in his opinion, current Indiana statutes are ambiguous with regard to surrogacy issues and the donation of embryos (e.g., is this an adoption?). He said that there is a medical justification for surrogacy, and he reviewed circumstances when surrogacy might be considered an option. Dr. Donahue stated that patients desire assistive reproductive technology for various reasons and that good things come from this technology. Dr. Donahue briefly reviewed the UK licensing and regulatory requirements. The main difference is that the UK has a licensing body called the Human Fertilization and Embryology Authority (HFEA). The HFEA issues a license to a party referred to as the "Person Responsible" who is defined as the individual under whose supervision the authorized activities are to be carried out. The HFEA "Code of Practice, 6 Edition," which regulates any research or treatment which involves the creation, keeping, and use of human embryos outside the body, or storage or donation of human eggs and sperm in the UK, was supplied to the Commission staff and is available upon request. (See Exhibit 5.) Dr. Donahue emphasized that regulation should define the rights of the parents with regard to any potential child and protect the welfare of the child that may result from the use of the technology. He also reported that federal law mandates reporting to the Centers for Disease Control (CDC), which is available online. The data available is two to three years old and does not include sufficient information to determine the number of surrogacy cases. Dr. Donahue recommended that the General Assembly should consider re-evaluation of the Indiana surrogacy statute, develop clear guidelines, and include a mechanism to ensure compliance.

Mr. Steven Kirsh, J.D., is an attorney specializing in adoption cases. He commented that he does not do surrogacy work and is not working on the current case in the news. (See Exhibit 6.) Mr. Kirsh stated that there are not enough children available for adoption. Additionally, some individuals want a biological link to their children. In this regard, medical technology that can provide the biological link has outpaced laws. (See Exhibit 6.) The children that result from the application of assistive reproductive technology services (ARTS) should be entitled to protection under the law. Current adoption laws require screening of potential parents and home visits.
Counseling is also required for parents wishing to adopt and for biological parents terminating their parental rights. Mr. Kirsh commented that Indiana similarly needs laws governing ARTS that define the legal parents, who can participate in these procedures, and that also protect the best interests of the child. He said there are additional questions with regard to the custody of cryopreserved embryos and gametes. 

Mr. Kirsh reported that Indiana statutes are clear that surrogacy contracts are not enforceable. He defined a surrogate mother as potentially having a biologic link to the child. Mr. Kirsh commented that surrogates have decided in the past not to relinquish custody of the child and that the same requirements of other ARTS procedures should apply to surrogacy. He then defined a gestational carrier, as an individual who has no biologic connection to the child that fills a need allowing a woman who cannot carry a baby to term to have a biological child. Mr. Kirsh stated that a comprehensive statutory scheme is essential. It should include mandatory contract provisions that must be included, mandatory home studies and counseling, and remedies for noncompliance and court supervision. He said that an Indiana statute could be based upon the Uniform Parentage Act or examples from other states that have enacted legislation. Mr. Kirsh concluded by saying that some states have no legislation, some have bans, but that without legislation, the courts will determine practice through the application of case law.