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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