ILNews

COA allows woman to establish maternity

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The Indiana Court of Appeals reversed the denial of an agreed petition to establish paternity and maternity of a child who was born of a surrogate, finding equitable relief should allow the biological mother to establish she is in fact the baby's biological mother.

The embryo of husband and wife T.G. and V.G. was implanted into V.G's sister, D.R., who gave birth to baby R. T.G. executed a paternity affidavit, but the Porter Circuit Court denied establishing maternity because Indiana law doesn't permit a non-birth mother to establish maternity and the law holds the birth mother is the legal mother.

It's presumed in Indiana that the woman who gives birth to a child is the baby's biological mother, but reproductive technologies have made it possible for a woman to give birth to a baby that is not biologically hers. There's no statute specifically providing procedures for establishing maternity.

The state argued in In the matter of the paternity and maternity of infant R., No. 64A03-0908-JV-367, equitable relief may be afforded under the circumstances of the case; T.G., V.G., and D.R. claimed Indiana's paternity statutes could be construed so as to apply equally to their situation.

"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," wrote Judge L. Mark Bailey. "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 judge continued.

"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," he wrote.

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. This would involve more than just an affidavit between the parties.

The Court of Appeals remanded with instructions for the trial court to conduct an evidentiary hearing, and if V.G. can prove she is the biological mother, grant all other relief just and proper under the circumstances.

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  1. Excellent initiative on the part of the AG. Thankfully someone takes action against predators taking advantage of people who have already been through the wringer. Well done!

  2. Conour will never turn these funds over to his defrauded clients. He tearfully told the court, and his daughters dutifully pledged in interviews, that his first priority is to repay every dime of the money he stole from his clients. Judge Young bought it, much to the chagrin of Conour’s victims. Why would Conour need the $2,262 anyway? Taxpayers are now supporting him, paying for his housing, utilities, food, healthcare, and clothing. If Conour puts the money anywhere but in the restitution fund, he’s proved, once again, what a con artist he continues to be and that he has never had any intention of repaying his clients. Judge Young will be proven wrong... again; Conour has no remorse and the Judge is one of the many conned.

  3. Pass Legislation to require guilty defendants to pay for the costs of lab work, etc as part of court costs...

  4. The fee increase would be livable except for the 11% increase in spending at the Disciplinary Commission. The Commission should be focused on true public harm rather than going on witch hunts against lawyers who dare to criticize judges.

  5. Marijuana is safer than alcohol. AT the time the 1937 Marijuana Tax Act was enacted all major pharmaceutical companies in the US sold marijuana products. 11 Presidents of the US have smoked marijuana. Smoking it does not increase the likelihood that you will get lung cancer. There are numerous reports of canabis oil killing many kinds of incurable cancer. (See Rick Simpson's Oil on the internet or facebook).

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