Over the past decade, technological advancements have allowed parents to conceive children through techniques such as artificial insemination or surrogacy. In order to clarify, when we state the term “Surrogate” we mean a woman who agrees to biologically carry a child for another. In recent years, there have been some notorious cases in the United States that evidence that these advancements have taken place at a quicker pace than the adaptation of the Law to such development. As a law firm we have encountered several cases of surrogacy and have realized that there is a general confusion about surrogacy. This blog entry is aimed at clarifying the most frequent questions that clients have asked us in this matter.
Surrogacy Contracts are Unenforceable
In Indiana, surrogacy contracts are void under Indiana Code §31-20-1-1. It is against the law to enforce any surrogacy contract in which a surrogate is required to any of the following: provide a gamete to conceive a child, become pregnant, consent to undergo or undergo an abortion, undergo medical or psychological treatment or examination, use a substance or engage in activity only in accordance with the demands of another person, waive parental rights or duties to a child, terminate care, custody, or control of a child, or consent to a stepparent adoption under IC 31-19. This applies to surrogate contracts signed after March 14, 1988.
Indiana Statutes Do Provide for Surrogacy
However, despite the unenforceability of these agreements, in Indiana it is possible to conceive a child through surrogacy and have recognized paternity or maternity of the surrogate child without having to undergo the process of adoption. In the case of In the Matter of the Paternity and Maternity of Infant T, 922 N.E.2d 596 (Ind. Ct. App. 2013), the Court of Appeals ruled that it is in the best interest of a child to have a proper identification of parents and child, and therefore it is possible to use technical procedures to establish both paternity and maternity of the child.
In the case of In re Paternity and Maternity of Infant R, 922 N.E.2d (Ind. Ct. App. 2010) at 60, the Court only recognized the paternity of the biological father and not that of the biological mother, as Indiana Law establishes maternity on the premise of birth. However, in the case of Infant T, the court reversed on appeal and stated that the law establishes maternity based on a presumption, and that the current technological advancements allow to recognize biological maternity to the surrogate mother. The same Indiana statutory scheme that is used to establish the paternity of a father shall be used to establish maternity.
In the case that maternity has already been established for the birth mother, there can still be an indirect disestablishment of maternity. In order for the birth mother to lose maternity of a child, maternity would need to be simultaneously recognized to the biological mother. In Indiana, direct disestablishment of paternity or maternity are against standing statute, as it is against the best interest of a child, as well as public policy, for that child to be bastardized or to be declared without a father or mother. Specifically, Indiana does not have a statute outlining the provisions for an action for the disestablishment of paternity. Indiana law also recognizes a presumption of paternity for the husband of the birth mother. In the case that the birth mother is married, the law is likely to recognize maternity and paternity for the birth parents, and the biological parents would have to turn to indirect disestablishment in order to be listed on the child’s birth certificate.
This blog post is meant to be a quick guide to surrogacy in Indiana and is by no means an in-depth instruction manual. If you have further questions about surrogacy and related matters and need assistance, please do not hesitate to contact the experienced attorneys at Banks & Brower, LLC for a free consultation at (317) 870-0019 or email us at firstname.lastname@example.org