‘Is your family complete?’: Experts say Indiana surrogates need legal protections and social visibility

By Erica Irish
TheStatehouseFile.com

INDIANAPOLIS — After Fort Wayne mother Laura Wheeler spent several years caring for her three children with her husband, she felt her personal family was complete.

With a husband who could support the family financially through his work as an attorney and with the help of benefits from time served in the U.S. Army, Wheeler spent years as a stay-at-home mom forging a personal connection with her children.

But that life left her unfulfilled. Desiring to escape the home and engage with her community, Wheeler took to the internet in 2009 and began browsing for volunteer opportunities in the Fort Wayne area.

With most volunteer positions asking her to sacrifice her day hours for training, Wheeler started looking for a more flexible option.

Laura Wheeler at 39 weeks pregnant during a gestational surrogacy arrangement in 2015. Photo by Laura Wheeler.

That’s when she stumbled across an online ad that, admittedly, she called “weird” at first glance.

Superimposed on a photo of a pregnant woman’s torso were the words “IS YOUR FAMILY COMPLETE? DO YOU STILL HAVE A UTERUS?”

Wheeler’s curiosity soon overcame her unease. Now, one decade later, Wheeler uses her body to help infertile couples grow their families as a gestational surrogate.

But Wheeler and others working in the field firsthand call Indiana’s existing surrogacy laws undefined, with few top-down regulations for the lawyers, physicians and private citizens immersed in the field.

Because of that, it’s been the responsibility of assisted reproduction lawyers like Michele Jackson, a principal for Harden & Jackson LLC in Carmel, Indiana, to uphold national recommendations for surrogacy arrangements.

There are important distinctions between the most common surrogacy procedures.

In gestational surrogacy, the surrogate does not share DNA with the child and instead serves as a vessel for the embryo. The intended parents work to create the embryo beforehand, either with their own egg and sperm or with help from donors, and then transfer this material to an approved surrogate.

The Centers for Disease Control (CDC), reports that the number of women carrying fetuses in gestational surrogacy arrangements increased from 727 in 1999 to 3,432 in 2013. Of all cycles between 1999 and 2013, gestational surrogates gave birth to more than 18,400 infants, according to the ASRM.

Traditional surrogacy arrangements involve cases in which the chosen surrogate does share DNA with the child. She uses her own egg that is inseminated with sperm from either a donor or the intended father.

There are virtually no data available to catalog the number of infants born in traditional surrogacy agreements, according to a report by the Council for Responsible Genetics, a non-profit that studies biotechnology and medical ethics in Cambridge, Massachusetts.  

Each of these procedures are viable options for the one in eight couples who experience infertility. Of this number, the cause of infertility varies, according to research by the U.S. Department of Health and Human Services. On average, one-third of infertile couples cannot have a baby due to a disorder in the man, and, in another third, the woman is unable to carry a baby. Still another third of couples are unable to determine why they can’t have children.

Under current Indiana law, women are presumed to be the legal mothers of any child they birth. Even so, surrogacy arrangements still occur, forcing surrogates to file documents with the courts during or after the pregnancy to disprove their parentage.

Jackson called this language especially outdated for gestational surrogates because they have no genetic connection to the babies they birth, meaning the child was created from material provided by the intended parents. She said it’s essential that the Indiana legislature keep up with the times.

Rep. Sean Eberhart, R-Shelbyville, made that his mission during the 2019 legislative session through House Bill 1369, a bill that would have specified guidelines for contracts drafted in surrogacy agreements. The measure was quietly defeated after it was never heard in the Senate Judiciary Committee, though it passed out of the Indiana House in a 78-12 vote.

Assorted pregnancy tests used by Laura Wheeler in spring 2016 to monitor the progress of her pregnancy in a gestational surrogacy arrangment. Photo provided by Laura Wheeler.

Senate Judiciary Committee Chair Randy Head, R-Logansport, declined to comment on the bill.

Among other provisions, the bill would have addressed everything from privacy to healthcare preferences and the surrogate’s future relationship with the baby, if there was to be one. It also clarified that intended parents in a contractual agreement have custody of the child upon its birth, even if they break the agreement with the surrogate.  

Amanda Sapp, an assisted reproduction attorney operating her own law office and the first gestational surrogacy agency in Indiana, The Stork’s Nest, said a lack of clarity in the law can leave surrogates vulnerable to complicated situations. For example, if a baby is born with an unexpected genetic disorder or disability, the intended parents can abandon the child with virtually no consequences.

But for some groups, surrogacy represents a dangerous step that ventures into manufacturing human life for profit. Glenn Tebbe, executive director of the Indiana Catholic Conference, spoke to this perspective on behalf of the Catholic church, a lead organization against many forms of assisted reproduction technology.

In some states, including Arizona and New York, surrogacy arrangements are required to be “compassionate arrangements” in which the surrogate cannot make money from delivering a child to its intended parents. And on the international stage, a growing number of countries, including Denmark, France, Germany and Ireland, refuse to recognize the practice outright.

“Those that are interested in fostering and protecting the authentic interests of women would do well to avoid giving government sanction to a practice that clearly reduces women down to their biological parts and treats them as commodity,” Tebbe said to lawmakers reviewing HB 1369 in February.

Wheeler, however, said the idea that surrogates pursue agreements for easy money, or that intended parents use agreements to take advantage of vulnerable women, fails to capture the difficulty of each surrogacy journey.

“It’s not the quick payday people think it is,” Wheeler said, adding she would estimate she makes around $45,000 per agreement.

Not only does a woman have to sacrifice her body for a nine-month pregnancy, but she must also undertake months of pre-screenings, including background checks and mental health evaluations. Most agencies also require that surrogates not be on any form of government assistance, including Medicaid or Temporary Assistance for Needy Families (TANF) and that they subscribe to a health insurance provider that covers surrogacy.

Adria Reed, a nurse for the Midwest Fertility Specialists in Fishers, Indiana, who has worked in assisted reproduction since the 1990s, confirmed this. Reed said the average surrogacy arrangement requires a full year — and that’s only when the process is going well.

The procedure becomes especially complicated when a surrogate chooses to work with an international couple, a reality that defined nearly 16 percent of gestational surrogate agreements between 1999 and 2013, according to the Centers for Disease Control and Prevention.

Jennifer Grumme, a Greencastle, Indiana, native, has spent the last six months working with an agency in California to receive her first embryo as a gestational surrogate. She’s set to make upwards of $50,000 by the end of the agreement.

The agency paired Grumme, 28, with a couple living in China, where surrogacy is restricted. Many families there find help in American surrogates through international agencies.

Grumme declined to identify the couple to protect their privacy.

In March, Grumme flew to California for several days with her sister to receive the embryo, created using genetic material from the couple.

And the stakes are especially high, Grumme said, because this is the only embryo the couple was able to create using their own egg and sperm. Should Grumme’s body reject the embryo, the couple will have to seek out a donor to assist in the surrogacy process instead.

Though Grumme is happy to help amid her life as a mother to a young infant and sommelier, coordinating what she said is a lifechanging procedure on the other side of the world is daunting and, at times, alienating.

“We did do a Skype call as an initial meet and greet,” Grumme said about her relationship with the couple. “Now that I’m this far into the process, I feel like if I did it again, I’d want someone that was more tangible. But I’m by no means upset with my decision. I was trying to be as open as I could.”

Indiana University law professor Jody Madeira confirmed similar feelings of isolation among the hundreds of women she interviewed in her 2018 book on infertility, family, and assisted reproduction, called “Taking Baby Steps: How Patients and Fertility Clinics Collaborate in Conception.”

Madeira’s principal finding in the research was that a majority of women seeking infertility treatment or engaged in assisted reproduction felt shame and, even when the procedures went well and produced the desired child, the majority of couples felt their physician-patient or agency-client relationship was “cold and formal.”

The professor said her research served as personal exploration, too, saying she was inspired to launch the project after facing infertility in her own marriage. Madeira used in vitro fertilization to give birth to her three children — triplets — in 2007.

Madeira also noted that drafting laws to guide areas as sensitive as surrogacy can be a massive challenge for policymakers, whether in the Indiana General Assembly or beyond. Overall, she said HB 1369 “misses the mark” in key areas, such as expanding regulations for sperm donors, and is outright wrong in others, such as when the bill defines a “parent-child relationship” as a phenomenon that exists between an unborn embryo and the intended parents.

“That’s simply unconstitutional,” Madeira said, arguing such a definition violates the U.S. Supreme Court’s monumental Roe v. Wade ruling that protected women’s right to abortion in 1973. 

Madeira, alongside her colleagues in the reproductive industry, said legal protections for surrogates will only become more necessary as the procedure becomes more common and affordable for families.

But what’s also essential, industry experts argue, is social visibility and acceptance.

“The area is just exploding, and it’s fascinating,” Jackson said. “It has to do with life and death and infertility and babies. It’s so interesting.”

Erica Irish is a reporter for TheStatehouseFile.com, a news website powered by Franklin College journalism students.

Editor’s note: This story has been edited to correct a statement about The Stork’s Nest, which is the first gestational surrogacy agency in Indiana but not the only one. 

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