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Surrogacy Modern Family Planning Technologies and the Law

Surrogacy – Modern Family Planning Technologies and the Law

Over the past few decades, there have been significant strides in the area of science, and specifically in family planning. Persons wishing to have children are presented with more and more options than the traditional routes of being married and having a biological child. But what do these advances in technology and science have to do with the law? A lot actually.

For hundreds of years the law seeks to establish ground rules for parentage (who is the parent, and what are the parent’s rights and duties to his or her child), paternity (establish the father of a child born to an unmarried woman, custody, parenting time, and child support), and divorce (custody, parenting time, and child support for children born of a marriage that is being dissolved).

Because many laws were drafted before the advances in science came along, the laws have sometimes not caught up with the changes in society and family planning.

As a preliminary matter, and of course, traditionally hundreds of years ago, children were often born to a married couple. Because it is (or was) obvious who the mother of the child is (as she was pregnant and delivered the child), the birth mother is presumed the mother of the child under the law; and in general, if the mother is unmarried, it is presumed at birth that the mother has sole legal custody of the child.1 There is little in the way of statutory frame work regarding the maternity of a child.

With respect to paternity, there is far more legislation, as by the very laws of nature, and before technologies such as DNA testing arose, it was hard to determine with certainty who the biological father was. Thus, the law states that if a child is born to a married woman, the married woman’s husband is presumed to be the father of the child.2 The presumption can be rebutted, meaning, through legal action, if another man other than the woman’s husband is the biological father, the other man can be established by law to be the father.

With a basic understanding of how a child comes to have a legal mother and father at birth, there are several complexities that arise when reproductive technologies are used, such as sperm donors, egg donors, and surrogates.

In a recently decided Court of Appeals opinion, In Re the Matter of the Paternity and Maternity of Infant T, the Court of Appeals addressed an issue involving a surrogate mother.3

In In Re the Matter of the Paternity and Maternity of Infant T, S.T. was the surrogate mother of Infant T. S.T. was married during the pregnancy to C.T. S.T., C.T. and M.F. entered into an agreement that S.T. would serve as the surrogate for M.F.’s biological child. S.T. became pregnant with Infant T following a procedure wherein M.F. provided a sperm sample, and an anonymous donor egg was used.

Absent any legal action, S.T. (the birth mother) and C.T. (her husband) are presumed the parents of Infant T. Under Indiana Law, a surrogate agreement is:

[A]n agreement that is entered into before the birth of a child between a surrogate and one (1) or more parties and that is intended by the parties at the time that the agreement is made to induce the surrogate to relinquish care, custody, and control over the child at birth to any of the following:

(1) An intended biological parent of the child.

(2) An intended biological parent of the child and another person who is not:

(A) genetically related to the child; and

(B) the surrogate's spouse.

(3) Two (2) intended biological parents of the child.4

However, under Indiana law, a surrogate agreement is unenforceable if it requires the birth mother to waive her parental rights or duties to the child, or to terminate care, custody or control of the child she is about to conceive or is in gestation. Specifically:

The general assembly declares that it is against public policy to enforce any term of a surrogate agreement that requires a surrogate to do any of the following:

(6) Waive parental rights or duties to a child.

(7) Terminate care, custody, or control of a child.5

In In Re the Matter of the Paternity and Maternity of Infant T, S.T., C.T. and M.F. petitioned the court to establish paternity in M.F. (and disestablish in C.T. the presumptive Father by marriage), and disestablish maternity in S.T. In appears that M.F. intended to raise the child as a single father. The trial court denied all requests pursuant to their agreement.

The Court of Appeals held that with respect to the Father, there was sufficient caselaw and statute that allowed for a presumptive father (C.T.) to disestablish paternity before birth, so long as the biological father could be proven and paternity established in him (M.F.). Thus, the Court of Appeals reversed the trial court, finding that the trial court erroneously denied M.F.’s request to establish paternity, as it could be proven (through DNA testing) by clear and convincing evidence that he is the biological father.

However, the Court of Appeals affirmed the trial court’s denial of S.T.’s request to disestablish maternity. The Court of Appeals held that because no other mother was seeking to establish paternity in lieu of S.T. (such as M.F. sought paternity to be established in lieu of C.T.), that it is against public policy to issue an order that would effectively leave a child motherless before birth.

The Court of Appeals did not address the remedies for custody modification, termination of parental rights, and if adoption was a viable means to reach the intended result (i.e. that S.T. and C.T. have no parental rights and duties, and M.F. have all parental rights and duties), as those courses of legal action require that a child be born first.

We hope that this blog post has been helpful in understanding the laws regarding parentage and surrogacy. Every case is different, and it is recommended that you consult an attorney to determine the best course of action to achieve your goals in your specific case. Ciyou & Dixon, P.C. practices throughout the state of Indiana. This blog post was written by attorney, Lori Schmeltzer.

  1. I.C. § 31-14-13-1
  2. I.C. § 31-14-7-1(1)
  3. In Re the Matter of the Paternity and Maternity of Infant T, ___ N.E.2d. __ (Ind.Ct.App.2013)
  4. I.C. § 31-9-2-127
  5. I.C. § 31-20-1-1

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