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. Especially I would like to see all the republican voting patriotic good ole boys to stop and understand that the wars they have been volunteering for all along (especially the past decade at least) have not been for God & Jesus etc no far from it unless you think George Washington's face on the US dollar is god (and we know many do). When I saw the movie about Chris Kyle, I thought wow how many Hoosiers are just like this guy, out there taking orders to do the nasty on the designated bad guys, sometimes bleeding and dying, sometimes just serving and coming home to defend a system that really just views them as reliable cannon fodder. Maybe if the Christians of the red states would stop volunteering for the imperial legions and begin collecting welfare instead of working their butts off, there would be a change in attitude from the haughty professorial overlords that tell us when democracy is allowed and when it isn't. To come home from guarding the borders of the sandbox just to hear if they want the government to protect this country's borders then they are racists and bigots. Well maybe the professorial overlords should gird their own loins for war and fight their own battles in the sandbox. We can see what kind of system this really is from lawsuits like this and we can understand who it really serves. NOT US.... I mean what are all you Hoosiers waving the flag for, the right of the president to start wars of aggression to benefit the Saudis, the right of gay marriage, the right for illegal immigrants to invade our country, and the right of the ACLU to sue over displays of Baby Jesus? The right of the 1 percenters to get richer, the right of zombie banks to use taxpayer money to stay out of bankruptcy? The right of Congress to start a pissing match that could end in WWIII in Ukraine? None of that crud benefits us. We should be like the Amish. You don't have to go far from this farcical lawsuit to find the wise ones, they're in the buggies in the streets not far away....

  2. Moreover, we all know that the well heeled ACLU has a litigation strategy of outspending their adversaries. And, with the help of the legal system well trained in secularism, on top of the genuinely and admittedly secular 1st amendment, they have the strategic high ground. Maybe Christians should begin like the Amish to withdraw their services from the state and the public and become themselves a "people who shall dwell alone" and foster their own kind and let the other individuals and money interests fight it out endlessly in court. I mean, if "the people" don't see how little the state serves their interests, putting Mammon first at nearly every turn, then maybe it is time they wake up and smell the coffee. Maybe all the displays of religiosity by American poohbahs on down the decades have been a mask of piety that concealed their own materialistic inclinations. I know a lot of patriotic Christians don't like that notion but I entertain it more and more all the time.

  3. If I were a judge (and I am not just a humble citizen) I would be inclined to make a finding that there was no real controversy and dismiss them. Do we allow a lawsuit every time someone's feelings are hurt now? It's preposterous. The 1st amendment has become a sword in the hands of those who actually want to suppress religious liberty according to their own backers' conception of how it will serve their own private interests. The state has a duty of impartiality to all citizens to spend its judicial resources wisely and flush these idiotic suits over Nativity Scenes down the toilet where they belong... however as Christians we should welcome them as they are the very sort of persecution that separates the sheep from the wolves.

  4. What about the single mothers trying to protect their children from mentally abusive grandparents who hide who they truly are behind mounds and years of medication and have mentally abused their own children to the point of one being in jail and the other was on drugs. What about trying to keep those children from being subjected to the same abuse they were as a child? I can understand in the instance about the parent losing their right and the grandparent having raised the child previously! But not all circumstances grant this being OKAY! some of us parents are trying to protect our children and yes it is our God given right to make those decisions for our children as adults!! This is not just black and white and I will fight every ounce of this to get denied

  5. Mr Smith the theory of Christian persecution in Indiana has been run by the Indiana Supreme Court and soundly rejected there is no such thing according to those who rule over us. it is a thought crime to think otherwise.