31 Dec 2009 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.