ILNews

Courts study changing surrogacy law

Michael W. Hoskins
April 28, 2010
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Indiana Lawyer Focus


Marriage, divorce, and custody disputes are all significant aspects of family law that warrant a lot of attention from courts and the legal community. But Indiana and other states are currently facing an issue that brings into play an array of family law concerns involving the start of a family, parental responsibilities, reproductive rights, and contract interpretations: surrogacy.

Surrogacy law is at a crossroads because of scientific and technological advances that give people more options to start a family.

For Indiana, the issue surfaced most recently in the case In the Matter of the Paternity and Maternity of Infant R., No. 64A03-0908-JV-367, in which surrogacy law attorney Steven Litz from Monrovia is challenging the constitutionality of Indiana's paternity law because it allows men - but not women - to establish legal parenthood.

Indiana courts have long recognized the importance of family law and held it's in the best interests of a child to have his or her biological parentage established. But no state statute specifically sets out the procedures for establishing maternity. Lawmakers have given state courts little guidance on how to handle gestational surrogacy where an egg from the biological mother is artificially inseminated with the father's sperm and implanted into a surrogate's womb until birth.

State courts in Arizona and Maryland have struck down similar paternity laws in surrogacy situations, while Massachusetts and New York courts have found their statutes inadequate to deal with reproductive technology and ruled that judges should be guided by the principle of equity.

The Hoosier appellate courts are getting the chance to examine their state's statutes with this case involving Infant R., now about 14-months-old.

An embryo of husband T.G. and wife V.G. from northern Indiana was implanted into the wife's sister, D.R., who gave birth to the baby in February 2009. The couple petitioned to have the genetic mother's name on the child's birth certificate and the surrogate sister filed an affidavit supporting their petition. But Porter Circuit Judge Mary Harper and Magistrate Edward Nemeth refused, ruling that state statue doesn't permit a non-birth mother to establish maternity but instead presumes the birth mother is the legal maternal mother.

The case centers on the 1988-passed surrogacy law detailed in Indiana Code 31-8-1-1, which declares surrogate contracts to be against public policy and prohibits a court from considering the contract as a basis for determining custody in the event the surrogate mother refuses to give up the child. It also involves the state's paternity statute passed more than 50 years ago.

Litz was surprised that the trial court had decided the way it did. He said it's the first time he's experienced that in his 25 years of practicing surrogacy law. This case is unique because other jurists statewide haven't found an issue with allowing the agreements to be entered for establishing maternity, he said, and the Attorney General's Office agreed that the lower court's decision should be appealed.

But in its Feb. 17 ruling, a three-judge panel disagreed with the lower court but at the same time held that an affidavit or stipulation between the affected adults wasn't enough. The judges reversed the lower court decision on denying the agreed petition, ruling the biological mother should be allowed to establish maternity. However, the court applied a standard that Litz said differs from standard practice of courts throughout the state.

"While we conclude that the public policy for correctly identifying biological parents is clearly evinced in our paternity statutes, it does not follow that we must embark on a wholesale adoption and application of these statutes in order to provide relief under the narrow set of circumstances we are presented with today," Judge L. Mark Bailey wrote. "Rather, it is for the Legislature to evaluate and deliberate comprehensive proposals for changes to these statutes."

The appellate court decided, however, that these circumstances suggest that equity should provide an avenue for relief. If equity ignores technological realities the law has yet to recognize, a baby born under these circumstances would be denied the opportunity other children have to be linked to those with whom he shares DNA. A surrogate would be denied a remedy available to putative, but not biological fathers, to remove an incorrect designation on a birth certificate and avoidance of legal responsibilities for someone else's child the court continued.

The presumptive relationship that D.R. is the biological mother will stand unless V.G. establishes she is in fact the biological mother, which she must do by clear and convincing evidence, the court determined.

Litz filed a transfer petition with the Indiana Supreme Court in mid-March. Justices haven't yet issued a decision on whether they'll intervene, but Litz hopes the high court will agree in order to correct what he considers incorrect interpretations of the law.

This is the latest of various cases coming up more frequently across the country, confronting the outdated laws that haven't kept up with modern technology and reproductive options. The nonprofit Human Rights Campaign reports that only six states allow individuals and couples to enter into surrogacy contracts, while the District of Columbia and 11 states prohibit these agreements in all or some instances. The remaining 34 states have mixed or unclear laws with court rulings throwing some of those states into more uncertainty.

Some Indiana appellate cases have surfaced in more recent years on the issue, but Litz said it continues to cause issues because the paternity and surrogacy statutes haven't been revised.

A mom has the same rights as a dad, Litz contends.

"There's a reason it hasn't come up on appeal before," he said. "This is so straightforward and basic common sense applies."

Though he's not a family law focused attorney, Litz imagines it does have implications on more general family law where courts must regularly look at maternity and paternity issues in making their decisions.

Family law attorneys throughout the state, and even those watching the case nationally, see this as an important appeal with broader implications.

"The case is a giant step forward for parentage rights and surrogacy in Indiana," said Carmel family law attorney Michele Jackson, with Jocham Harden Dimick Jackson. "The case clearly identifies the rights of biological mothers that use a gestational surrogate to establish their maternity in a child. This is a much efficient and legally appropriate means to establishment of parental rights for mothers, and it's also consistent with a father's rights in establishing paternity. The legislature should look at revising the laws associated with surrogacy."

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  1. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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