Gestational Surrogacy in Indiana

Indiana Surrogacy Laws

Surrogacy contracts in Indiana are void under Indiana Code §31-20-1-1 (p.421), which makes surrogacy contracts void and unenforceable. Despite the unenforceability 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 general 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.

 

Become a surrogate Become a parent

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,” 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 Couple

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 & Stepparent Adoptions for Indiana Residents

Note: This situation typically arises if the child is born outside 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 & 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:

Other Attorneys Practicing Reproductive Law In This State:

The US Surrogacy Law Map™ and each of its state law descriptions (collectively, “The US Surrogacy Law Map”) is a 2010 copyrighted document, current through the year 2022. The US Surrogacy Law Map™ is protected by US Copyright laws and is the sole and exclusive property of Creative Family Connections LLC (“CFC”). You may not copy, reproduce, recreate, distribute, publish, display, perform, modify, create derivative works, transmit, or in any way exploit any content contained on this Website, including, but not limited to, The US Surrogacy Law Map™, in any manner and in any medium. The information contained in The US Surrogacy Law Map™ is for informational purposes only and may not be used for any commercial purposes.

CFC may grant, in its sole and absolute discretion, a limited license to certain approved individuals and/or entities to use The US Surrogacy Law Map™ for presentations. Any requests for a license shall be provided to CFC by email in advance of any presentations. No license is granted until such time as CFC provides you with written approval of the right to use The US Surrogacy Law Map™, after you have signed CFC’s written release. You may not alter or remove any copyright or other notice from your licensed use of The US Surrogacy Law Map™. You further agree not to use The US Surrogacy Law Map™ for any unlawful purpose.

Notwithstanding the foregoing, you may include a hyperlink to The US Surrogacy Law Map™ without advance request. Except as otherwise provided herein, no other use of The US Surrogacy Law Map™ is permitted. Any use of data mining, data gathering, or extraction tools or processes in connection with The US Surrogacy Law Map™, or any reproduction or presentation of The US Surrogacy Law Map™ or its content, is strictly prohibited.

The US Surrogacy Law Map™ does not constitute legal advice and should not be construed as such, and CFC is not giving legal advice through The US Surrogacy Law Map™. The information contained in The US Surrogacy Law Map™ is strictly for informational purposes only and is not a substitute for obtaining individual, professional legal advice. The use of The US Surrogacy Law Map™ does not create any attorney-client relationship between CFC and users of the Website.

CFC tries to ensure that content on The US Surrogacy Law Map™ is accurate, up-to-date, and obtained from reliable sources, but CFC does not represent or warrant the content to be error-free. CFC does not endorse any of the attorneys listed. Nor does CFC represent that favorable results obtained in prior cases will be obtained in future cases. You accept and agree that your use of The US Surrogacy Law Map™ and any information therein is strictly at your own risk.

The US Surrogacy Law Map™

Surrogacy laws are different from state to state across the US. We have compiled the leading state-by-state surrogacy law map that features laws as actually practiced in all 50 states.

View the Map!