A recent Indiana Court of Appeals decision may pave the way for growth of surrogacy in Indiana. On February 17, 2010 the Court of Appeals reversed a trial court’s denial of an agreed petition to establish paternity and maternity of a child born to a surrogate. The Appeals Court found that equitable relief should allow the biological mother to establish she is in fact the baby’s biological mother.
In the matter of the paternity and maternity of infant R., No. 64A03-0908-JV-367, a surrogate was implanted with the fertilized biological embryo of her sister and brother-in-law. After a successful pregnancy and birth, the biological father executed a paternity affidavit. However, In Indiana, the presumption is that the mother delivering the child is the biological mother. Porter Circuit Court denied an agreed petition signed and filed by all the parties to establish maternity.
The relevant statutes for paternity were drafted prior to the development of reproductive technologies which now make it possible for a woman to give birth to a baby that is not biologically hers. Currently, Indiana has no specific statute providing procedures for establishing maternity. This has proven problematic for couples seeking surrogacy as an option to have children.
In the Court’s opinion, Judge L. Mark Bailey wrote: “We are aware of no reason why the public interest in correctly identifying a child’s biological mother should be less compelling than correctly identifying a child’s biological father.” The language in the order also suggests that the legislature should “evaluate and deliberate comprehensive proposal for changes to these statutes.”
The Court of Appeals remanded with instructions for the trial court to conduct an evidentiary hearing. The presumptive relationship that surrogate is the biological mother will stand unless the biological mother establishes she is in fact the biological parent, by clear and convincing evidence. An affidavit between the parties would not be sufficient. However, if practice from similar states such as Illinois is any indication, an affidavit from the fertility doctor involved in the surrogacy may suffice.
As the demand for surrogacy services in Indiana increases, this case law provides a better framework for those few attorneys practicing in this developing area.