Indian Child Welfare Act

Indian Child Welfare Act issues to consider in Assisted Reproduction Arrangements
The Indian Child Welfare Act
In 1978, Congress passed the Indian Child Welfare Act (ICWA) (25 USC §§1901–1963) in an effort to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by establishing specific standards that must be met before an Indian child may be removed from his or her family or placed in an adoptive or foster care placement. The ICWA was intended as a federal mandate to those involved in the child custody system to work collaboratively with tribes to prevent the breakup of Indian families and tribes and to redress past wrongs of the American child custody system. Congress found “that an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies and that an alarmingly high percentage of such children are placed in non-Indian foster and adoptive homes and Institutions” (25 USC §1901(4)). In any juvenile court dependency proceeding, in any voluntary adoption proceeding, probate or other legal guardianship proceeding, or other proceeding that may involve the termination of parental rights or involuntary placement of a child where the child involved may possibly be an Indian child, the court must consider the applicability of the ICWA to the proceeding. There are a variety of ways Indian tribes determine membership, ranging from blood quantum requirements to residency requirements; no set formula applies to all tribes. The ICWA protects the child’s interest in his or her tribe and the benefits that flow from membership in that tribe. See 25 USC §§1901–1902. Under the ICWA, a child’s tribe also has rights that are independent of the rights of the child and the child’s parents, so that the tribe may protect its interests. The ICWA applies only to federally recognized tribes, and the ICWA does not apply if a child who has some Indian ancestry is not, for whatever reason, a member or eligible to become a member of a tribe.

Egg Donation Agreements:
In the typical situation with an egg donor, there will be no “termination” of parental rights for the donor – in fact, the donor is deemed to never have had any parental rights to terminate because custody and control of the eggs vests with the intended recipient(s) immediately upon retrieval. Therefore, it is very unlikely that the ICWA will have any application to an egg donation, but in an abundance of caution, we include a provision in the contract where the donor represents that to the best of her knowledge she is not a member of, nor eligible to become a member in, a Native American or Alaskan Indian tribe. If the donor is not eligible for membership in a tribe, then neither is the Child, and ICWA does not apply.

Surrogacy Agreements:
The ICWA is less likely to have any application to a gestational surrogacy case where the child is not genetically connected to the surrogate, however, determining membership eligibility can be done in a variety of ways ranging from blood percentages to residency requirements and no set formula applies to all tribes, so the lack of genetic connection is not a dispositive factor. In addition, in surrogacy cases where the parental establishment case is completed pre-birth, there may technically be no “termination” of parental rights – in fact, the surrogate is typically deemed to never have had any parental rights to terminate. A pre-birth parental establishment order establishes parental rights for Intended Parents and legally rebuts the presumption in law that the surrogate (and her husband if she is married) has parental rights merely by having delivered the child. In other words, pre-birth actions result in a court order determining the “non-existence” of parental rights in the surrogate (and her husband if she is married). Therefore, the ICWA is very unlikely to have any application to these types of surrogacy cases, but in an abundance of caution, we include a provision in the contract where the surrogate represents that to the best of her knowledge she is not a member of, nor eligible to become a member in, a Native American or Alaskan Indian tribe. If the surrogate is not eligible for membership in a tribe, then neither is the Child, and ICWA does not apply. For this reason, even if the surrogacy is a traditional surrogacy or the parental establishment occurs after the birth, the ICWA will not apply if the surrogate is not eligible for membership in a tribe.

We are more than happy to have one of our attorneys call you to discuss this further if you still have questions, so just let us know.

Rich Vaughn
Richard Vaughn

Attorney Rich Vaughn is founder and principal of International Fertility Law Group, one of the world’s largest and best-known law firms focused exclusively on assisted reproductive technology, or ART, including in vitro fertilization (IVF), surrogacy, sperm donation or egg donation. Rich is co-author of the book “Developing A Successful Assisted Reproduction Technology Law Practice,” American Bar Association Publishing, 2017.

Peiya Wang
Paralegal (律师助理)

Peiya Wang joined IFLG as a paralegal in 2015, where she manages surrogacy, egg donation and parental establishment cases and provides translation services for many of IFLG’s international clients. Peiya received her bachelor’s degree from Beijing Technologies and Business University, where she majored in Marketing. She moved to the United States in 2012 to attend Northeast University in Boston, Massachusetts, receiving a Master of Science degree in Global Studies and International Affairs in 2014. Peiya moved to Los Angeles in 2015 and received her paralegal certification from UCLA Extension. When away from the office, Peiya is a dragon boat paddler and a ballroom dancer, where she favors Rumbas and Cha-chas. She is fluent in Mandarin and English.

Luis Sosa

Luis R. Sosa joined IFLG as a paralegal in 2016, where he enjoys pursuing his passion for family and reproductive law. While working toward his bachelor’s degree at Florida International University, Luis worked as a paralegal and legal assistant for family law litigation firms in Miami and Washington, D.C. As a paralegal and case manager for IFLG, Luis, who is bilingual in English and Spanish, manages surrogacy, egg donation and other reproductive law cases. In addition to spending time with husband Randy and dog Marty, Luis enjoys being outdoors and appreciating the arts.

Toni Hughes

After receiving her B.S. in Business Management, Toni joined IFLG to pursue her dream of working in the legal field. As a Paralegal with over 10 years of experience in the assisted reproduction technology field, Toni is our Managing Paralegal, responsible for training and managing our paralegal staff. From drafting legal documents to assisting our clients with post-birth matters, Toni embraces the challenge of learning something new in this field each day. Besides spending time with her son, Jordan, Toni enjoys exploring new things, cooking, spending time with family and friends, and serving as a Youth Advisor for “Next Generation.”

Miesha Cowart
Financial Coordinator

Miesha Cowart joined IFLG as a financial specialist in 2014 following a successful career in development and business finance. Miesha previously worked for 10 years in the construction industry as a controller and for 13 years as Development Coordinator for the non-profit U.S. Fund for UNICEF. In her free time, Miesha works with “Next Generation” at her church. “They are my heartbeats!” she says of the youth in her community.


Kim has over 25 years of experience in the legal field and has worked exclusively in surrogacy and assisted reproduction law since 1999. Kim is a senior case manager of surrogacy and egg donation cases, and is also responsible for managing parental establishment cases and interacting with IFLG’s Of Counsel attorneys across the country. With three children of her own, Kim understands the importance of family and finds working in this area of law a rewarding experience.

Rich Vaughn

Attorney Rich Vaughn combined his personal passion as a father of twin boys born via assisted reproductive technology (ART) with more than 20 years of experience in business and technology law to build International Fertility Law Group. Today IFLG is one of the most successful and best-known law firms in the world focused exclusively on fertility law, helping thousands of intended parents through empathetic listening, compassionate guidance, and unmatched legal expertise. As an advocate for reproductive freedom, Rich also contributes his knowledge and time to improving the understanding and practice of ART law, most recently as a founder of and speaker at the first Cambridge University International Surrogacy Symposium held in June 2019, as immediate past chair of the American Bar Association ART Committee, and as a popular presenter to law schools, faculty and advocacy organizations all over the world.

Elizabeth Tamayo

Elizabeth received her Bachelors of Science degree in Criminal Justice from California State University of Los Angeles. Shortly after graduating, she continued her education at the University of California, Los Angeles where she obtained her Paralegal certificate. Elizabeth is fluent in Spanish and has been in the legal field since 2009. She is excited to be a part of the IFLG Team helping families realize their dreams.

Sunny Chien

Sunny joined IFLG as a paralegal in 2017, where she manages surrogacy, egg donation and parental establishment cases for many of IFLG’s international clients. She holds a Bachelor of Arts degree in Philosophy from California State University of Los Angeles, where she graduated cum laude. Sunny is bilingual in English and Mandarin and has extensive experience as a legal assistant and paralegal at Los Angeles-area law firms. She is excited to be part of the IFLG team. In her spare time, Sunny enjoys spending time with her family and their dog, going to the beach, cooking, and being outdoors.

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Molly O'Brien

Fertility law attorney Molly O’Brien began working in the field of assisted reproduction technology (ART) in 2005, at an egg donation agency and a surrogacy agency where she became familiar with all aspects of in-vitro fertilization, egg donation and the financial aspects of surrogacy. Since becoming an attorney in 2011, Molly has drafted and negotiated surrogacy, egg donation, sperm donation embryo donation agreements for hundreds of her clients all over the world.