INDIANAPOLIS (AP) — Infant R’s birth certificate lists his father’s name.
But the space for his mother’s name is blank, and will remain so until the
Indiana Court of Appeals decides who his legal mother is.
The 11-month-old boy referred to as Infant R in court documents was
conceived by in vitro fertilization. His genetic parents are a northern
Indiana married couple who donated the sperm and egg. His birth mother is
the wife’s sister, who volunteered to carry the baby for them.
The couple — known as T.G. and V.G. in court records — then petitioned the
Porter Circuit Court to have the genetic mother’s name placed on the child’s
birth certificate. The surrogate, V.G.’s sister, filed an affidavit in
support of their petition.
But the judge refused, ruling that “Indiana law does not permit a non-birth
mother to establish maternity. Indiana law holds the birth mother is the
legal maternal mother.”
On Thursday, attorney Steven Litz asked the Court of Appeals to intervene,
challenging the constitutionality of Indiana’s paternity law because it
allows men — but not women — to establish legal parenthood.
Arizona and Maryland courts have struck down similar paternity laws in
surrogacy situations, Litz said. Deputy Attorney General Frances Barrow said
courts in Massachusetts and New York had ruled their paternity statutes were
inadequate to deal with reproductive technology and said judges should be
guided by the principle of equity.
The three-judge panel clearly sympathized with the couple, who sat quietly
behind Litz throughout the hearing and declined to talk with reporters. But
the judges preferred not to delve into constitutional issues. They spent
much of the 40-minute hearing trying to craft a simpler solution that could
be used as a precedent.
“It seems to me that everyone’s singing the same song,” said Chief Judge
John G. Baker. “We just want to make sure we’re in tune.”
Litz said he didn’t care how it was done, as long as V.G. was recognized as
the child’s mother. Barrow agreed the Constitution needn’t come into play.
Baker pondered whether adoption might be the simplest remedy, but Barrow
disagreed, saying a mother shouldn’t be required to adopt her own genetic
“We know who the parents are,” she said.
Another alternative, lawyers and judges said, would be for judges to
interpret the state paternity statute to apply to women as well as men.
The problem, said Litz, who has connected hundreds of surrogates with
would-be parents over the last 25 years, is that the law hasn’t kept up with
reproductive technology. Indiana’s paternity law was passed more than 50
years ago, when surrogate parenting didn’t exist. Even Indiana’s 1988
surrogacy law has been outpaced by changes in the practice, he said.
Litz said Indiana — like most of the 30 states with laws governing surrogacy
— passed its statute in the wake of the Baby M case, in which courts
initially forced artificially inseminated surrogate mother Mary Beth
Whitehead to give up her parental rights. The New Jersey Supreme Court later
overturned that decision.
But in the Baby M case the surrogate mother was also the child’s genetic
mother. Litz said most surrogacies now are in vitro pregnancies, in which
the birth mother isn’t the baby’s genetic mother.
There are no federal guidelines for surrogacy, and state laws are “really
all over the place,” Litz said. An online search for state surrogacy laws
yielded contradictory information.
In Indiana, surrogacy isn’t illegal but the contracts are unenforceable and
surrogates cannot be required to give up a child, he said. The state’s
surrogacy law doesn’t address cases in which the surrogate mother is not the
child’s genetic mother.
Barrow and Litz both said it might eventually be up to the Indiana General
Assembly to untangle the legal issues.
“There is no question that surrogacy is popular and gaining popularity each
year,” said Litz, who estimated that as many as 5,000 to 10,000 children
have been born to surrogates in the United States.
The judges gave no indication when they might issue a ruling. If they rule
in the parents’ favor, the court would issue an order directing the Porter
circuit judge to recognize V.G. as the child’s legal mother, Litz said.