By Michele Jackson
A recent Court of Appeals ruling in Indiana has created some confusion on the Indiana Court's view on establishing parentage in some surrogacy cases. The court ruled that a married woman who acted as a surrogate for another couple cannot petition to disestablish her maternity because it would cause the child to be "declared a child without a mother". The issue arose In the Matter of the Paternity and Maternity of Infant T.
For the past two years in Indiana, I have been successful in petitioning paternity and maternity for an intended father and intended mother based on the case In re Paternity & Maternity of Infant R. While this case was specific to biological parents, it did not prohibit the use of the process when using egg donor or sperm donor and thus I was continually successful in using the same process. However, based upon the recent case, this option may not be possible. It appears from a strict interpretation of this case, if a donor is used, then the gestational surrogate will be the legal mother until an adoption takes place, as the state will not allow for a child to not have a legal mother. While I believe that the courts will continue to accept the petitions for paternity and maternity, even after this decision, I want to make it clear there is a more significant legal risk for intended parents using donors.
I am unclear why the Court was petitioned in this manner regarding a Petition for Paternity and Disestablishment of Maternity. I, personally, do not petition this way. In addition, taking this case up on appeal was likely premature for Indiana.
While I feel this case will definitely affect single males and same sex males wanting to remove gestational surrogates from birth certificates, I am not confident that it will be applied in the court as our firm petitions in a different way than this case. If it is applied, then the parent that is not genetically related would have to adopt the child.
The other possible implication that could result from this case is that pre-birth orders may not be as readily available. Previously, the courts with whom I have worked would establish paternity and maternity through stipulation and affidavits. I am left wondering if the court will now require DNA testing for establishing maternity or paternity (depending on the donor material used).
The case states that the intended father could establish biological parentage through stipulation and affidavits pre-birth, but that to file for maternity, stipulation and affidavits were not sufficient and it needed to be proven by clear and convincing evidence ("The indirect disestablishment of maternity requires a putative mother to petition the court for the establishment of maternity and to prove her maternity by clear and convincing evidence, not simply by affidavit or stipulation" whereas for the father the Court states, "...on questions of paternity our supreme court has made clear that a joint stipulation between the birth mother and the putative father 'constitute[s] sufficient evidence to rebut the presumption.'").
I am disappointed that this case was filed in this manner and then appealed in this manner. I feel that this is a set-back for surrogacy in Indiana when donors are used. However, Infant R. still provides significant precedence for a quick and streamlined way to establish parentage for intended parents that are biologically related to the child. This seems to be stable and solid law in Indiana.
At this time, we are pursuing Indiana legislature to determine if we can create more favorable laws for surrogacy. Prior to this appeal case, it did not seem timely to make this request as surrogacy was quite flexible and we have been able to obtain parentage, even in donor cases.