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GESTATIONAL SURROGACY IN INDIANA

Surrogacy contracts in Indiana are void under Indiana Code §31-20-1-1 (p.421), which makes surrogacy contracts void and unenforceable. Despite the un-enforceability of surrogacy contracts, Gestational Surrogacy continues in Indiana. Moreover, some courts have started to grant pre-birth orders for Intended Parents. Indiana Code 31-20-1 provides: "The generally assembly declares that it is against public policy to enforce any term of a surrogate agreement and that surrogate agreements formed after March 14,1988 is void." Despite that the statute does recognize surrogate agreements and they are, therefore, unenforceable, gestational carrier arrangements in Indiana continue and some courts will grant pre-birth parentage orders establishing the rights of the Intended Parents.

PRE-BIRTH PARENTAGE ORDERS

Do courts grant pre-birth parentage orders?  Yes, some courts will grant pre-birth orders that rule on the maternity or paternity of a child. However, the ruling in "In the Matter of the Paternity and Maternity of Infant T”, (http://www.in.gov/judiciary/opinions/pdf/07111303ewn.pdf) has limited the ability of practitioners to obtain pre-birth parentage orders when one of the Intended Parents is not genetically related to the child.
 
Can both Intended Parents be declared the legal parents in a pre-birth order if at least one parent is genetically related to the child?

  • Married heterosexual couple using own egg and own sperm: Yes as long as it is medically documented that the embryo(s) transferred were 100% genetically related to both intended parents.
  • Married heterosexual couple using egg donor or sperm donor: Some courts will grant a pre-birth order IF the gestational carrier agreement was created pursuant to the laws of a state which specifically declares the respective legal rights of the parties.
  • Unmarried heterosexual couple using own egg and own sperm: Yes as long as it is medically documented that the embryo(s) transferred were 100% genetically related to both intended parents.
  • Unmarried heterosexual couple using an egg donor or sperm donor: Some courts will grant a pre-birth order IF the gestational carrier agreement was created pursuant to the laws of a state which specifically declares the respective legal rights of the parties.
  • Same-sex couple using an egg donor or sperm donor: No, not yet (even after the Supreme Court ruling that effectively struck down Indiana’s same-sex marriage ban)
  • Single parent using own egg or sperm: Possibly, depending on the judge.


Can both Intended Parents be declared the legal parents in a pre-birth order if no parent is genetically related to the child?
Some courts may grant a pre-birth order IF the gestational carrier agreement was created pursuant to the laws of a state which specifically declares the respective legal rights of the parties.
 
What are the bases for venue?  Residency within the county OR a consent to jurisdiction and venue by all parties.
 
Do results vary by venue?  Yes
 
If yes, are motions to waive venue accepted?  Yes, but it depends on the judge and county of filing AND consent to venue and jurisdiction by all parties.
 
Is a hearing required to obtain a pre-birth order?  A hearing is not required if all parties file a joint/consent petition.
 
Is a pre-birth order possible in Indiana based on a Gestational Carrier’s plan to deliver in Indiana, if no party lives in Indiana? Yes, depending upon the judge and county of filing AND a consent to venue and jurisdiction by all parties.


Will Indiana Vital Records honor a pre-birth order from another state?  Yes
 
What is the typical time frame to obtain a birth certificate after delivery?  Typically within 60 days

Same-Sex Couples

How are same-sex parents named on the final birth certificate?  Currently listed as Mother and Father. However, on June 30, 2016 the court recognized a child born to a married same sex couple to be a child “born in wedlock” thus requiring the birth certificate to list the same sex spouses. See Henderson and Henderson, et al vs. Adams et al. As of August 21, 2016, those changes have not been administratively implemented.

 
Can an international same-sex male couple obtain an initial birth certificate naming the biological father and Gestational Carrier?  Probably.
 
Can they subsequently obtain a birth certificate naming only the biological father or both fathers, with no mention of the Gestational Carrier?  Yes, if that is what a court has ordered.
 
Can a non-biological parent in a same-sex couple obtain a second parent adoption based solely on the fact that the child was born in Indiana (i.e., neither Intended Parent lives in Indiana)?  No
 
If no, will Indiana Vital Records honor a second parent adoption order from another state and add the second parent to the birth certificate?  Yes

SECOND PARENT ADOPTIONS FOR INDIANA RESIDENTS

Note: This situation typically arises if the child is born outside of the state.  The parents then return to Indiana to obtain a second parent adoption or stepparent adoption in Indiana.

Will courts in Indiana grant second parent adoptions or stepparent adoptions to heterosexual couples living in Indiana?  Yes
Does the couple need to be married?  No, but the legal process is greatly simplified IF they are married.
 
Will courts in Indiana grant second parent adoptions or stepparent adoptions to same-sex couples living in Indiana?  Yes
Does the couple need to be married?  No, but the legal process is greatly simplified IF they are married.

EGG AND SPERM DONATION

Is there a statute or published case law that addresses the rights of a donor over the resulting eggs, sperm, embryo or child?  Yes, there is case law, but the cases reach different results. In the case of Paternity and Maternity of Infant T, the Indiana Court of Appeals found that the Gestational Carrier is always the mother; therefore, the egg donor is not the mother. By contrast, judges in other cases have ruled that the Intended Mother and Intended Father are the legal parents.

TRADITIONAL SURROGACY IN INDIANA

The statute prohibiting Gestational Surrogacy agreements also applies to Traditional Surrogacy agreements. In Traditional Surrogacy cases, the courts have refused to grant pre-birth orders. Instead, they require the Intended Parents to go through a post-birth adoption procedure.

State law information provided by the following attorneys practicing Reproductive Law in this state:
 
Joel Kirsh
joel@kirsh.com
(317) 575-5555
 
Steven Kirsh
steve@kirsh.com
(317) 575-5555
 
Other attorneys practicing Reproductive Law in this state:
 
Amanda D. Sapp, RN, MSN, Esq.
asapp@sapplawoffice.com
www.sapplawoffice.com
 
Jennifer Hostetter
jhostetter@kirtleytaylorlaw.com
www.kirtleytaylorlaw.com
 
Michele Jackson, Esq.
mjackson@hardenjacksonlaw.com
www.hardenjacksonlaw.com

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