ILNews

COA: Surrogate can not petition to disestablish maternity

Back to TopCommentsE-mailPrintBookmark and Share

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 Indiana Court of Appeals determined on interlocutory appeal.

The issue arose in In the Matter of the Paternity and Maternity of Infant T., 67A05-1301-JP-36, in which S.T. acted as a surrogate for M.F. She was implanted with an embryo fertilized by M.F.’s sperm and an unknown donor’s eggs and became pregnant. M.F.’s wife planned on adopting the child once it was born. M.F., S.T. and S.T.’s husband C.T. jointly filed an agreed petition with the Putman Circuit Court to establish M.F.’s paternity and disestablish S.T.’s maternity.

The trial court denied the petition and certified it for interlocutory appeal.

“We hold that S.T.’s petition to disestablish maternity is not cognizable. It would not be in the best interests of the child, and would be contrary to public policy, to allow the birth mother to have the child declared a child without a mother. And it would be inconsistent to allow for petitions to disestablish maternity when petitions to disestablish paternity are forbidden,” Judge Edward Najam wrote.

“However, our holding does not exclude the indirect disestablishment of maternity, such as in (In re Paternity & Maternity of Infant R., 922 N.E.2d 59, 60 (Ind. Ct. App. 2010)). 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. If the putative mother satisfies her burden of proof, the establishment of maternity in her would indirectly disestablish maternity in the birth mother. But we are not presented with facts demonstrating maternity in any woman other than S.T. Indiana law presumes the birth mother of a child is the child’s biological mother.”

The COA reversed the trial court’s denial of the petition regarding M.F., however. The Indiana Supreme Court has made clear that a joint stipulation between the birth mother and the putative father constitutes sufficient evidence to rebut the presumption that the woman’s husband is the father. Here, all the parties stipulated that M.F. is the biological father of the infant born in February 2013.

The appeals court remanded for the trial court to enter an order establishing M.F.’s paternity.

 

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Please I need help with my class action lawsuits, im currently in pro-se and im having hard time findiNG A LAWYER TO ASSIST ME

  2. Access to the court (judiciary branch of government) is the REAL problem, NOT necessarily lack of access to an attorney. Unfortunately, I've lived in a legal and financial hell for the past six years due to a divorce (where I was, supposedly, represented by an attorney) in which I was defrauded of settlement and the other party (and helpers) enriched through the fraud. When I attempted to introduce evidence and testify (pro se) in a foreclosure/eviction, I was silenced (apparently on procedural grounds, as research I've done since indicates). I was thrown out of a residence which was to be sold, by a judge who refused to allow me to speak in (the supposedly "informal") small claims court where the eviction proceeding (by ex-brother-in-law) was held. Six years and I can't even get back on solid or stable ground ... having bank account seized twice, unlawfully ... and now, for the past year, being dragged into court - again, contrary to law and appellate decisions - by former attorney, who is trying to force payment from exempt funds. Friday will mark fifth appearance. Hopefully, I'll be allowed to speak. The situation I find myself in shouldn't even be possible, much less dragging out with no end in sight, for years. I've done nothing wrong, but am watching a lot of wrong being accomplished under court jurisdiction; only because I was married to someone who wanted and was granted a divorce (but was not willing to assume the responsibilities that come with granting the divorce). In fact, the recalcitrant party was enriched by well over $100k, although it was necessarily split with other actors. Pro bono help? It's a nice dream ... but that's all it is, for too many. Meanwhile, injustice marches on.

  3. Both sites mentioned in the article appear to be nonfunctional to date (March 28, 2017). http://indianalegalanswers.org/ returns a message stating the "server is taking too long to respond" and http://www.abafreelegalasnswers.org/ "can't find the server". Although this does not surprise me, it is disheartening to know that access to the judicial branch of government remains out of reach for too many citizens (for procedural rather than meritorious reasons) of Indiana. Any updates regarding this story?

  4. I've been denied I appeal court date took a year my court date was Nov 9,2016 and have not received a answer yet

  5. Warsaw indiana dcs lying on our case. We already proved that in our first and most recent court appearance i need people to contact me who have evidence of dcs malpractice please email or facebook nathaniel hollett thank you

ADVERTISEMENT