The Two-Part Legal Process*
There are two-parts to the legal process when engaging in a surrogacy arrangement; the contract enforceability and parentage establishment with the court. While they both stem from the same surrogacy arrangement, the courts in Indiana handle these two processes very differently. Laws stem from statutes and judicial decisions. Indiana has one statute governing surrogacy contracts (or "agreements"). There are also two cases and one statute that provide further guidance on the establishment of parentage when using a surrogate in Indiana.
Indiana has one statute that governs surrogacy, and it relates only to the contract or agreement. Indiana law on surrogacy can be found under Article 20 of Title 31 of the Indiana Code. According to this chapter on human reproduction, surrogacy contracts are declared to be void against public policy and are unenforceable. Under Indiana law, surrogacy contracts are considered void and unenforceable if the surrogate is required to do the following: provide a gamete to conceive the child, become pregnant, consent to an abortion, undergo medical treatment or examination, use a substance or engage in an activity in accordance with the demands of another person, waive parental rights to a child, terminate care of the child, or consent to a stepparent adoption. However, parts of the contract may still be enforceable. While declaring surrogacy contracts unenforceable, Indiana does not forbid the act of surrogacy, is favorable in establishing parentage with the courts, and it is becoming very active in Indiana. Contracts are drafted that work well for both the Gestational Surrogate and Intended Parents that lay out expectations for each individual involved. It is also likely that any Indiana fertility clinic will required that an agreement is drafted prior to any medical interventions being carried out.
Establishment Of Parentage With The Court*
The second step in the process of a gestational surrogacy arrangement, and the most important, is establishment of parentage with the court. Indiana has one statute that states that the woman that gives birth to the child is the legal mother, and if she is married, that her husband is the presumed legal father. This presumes that the birth mother is the genetic mother of the child and this statute has not kept up with the advancement in reproduction using a third party. To rebut this presumption, documents must be filed with the court to show that she is not the genetic mother and her husband (if she is married). There are also two cases that help guide the parentage establishment process; one using full genetic material of both intended parents and one using genetic material of an intended father with donor egg. Establishing parentage has been favorable in Indiana. Petitions are filed with the courts for pre- or post-birth orders to establish parentage and the Intended Parent(s) are named on the birth certificate. Two biologically related parents can obtain a pre-birth order with their name(s) on the birth certificate. When a donor egg is used with an intended father's genetic material, there is an increased legal risk and an adoption may be necessary.
Adoption for Same Sex Couples*
In Indiana, the courts have found that LGBT individuals can adopt the child of their same-sex partner. This means that after the child has been born and the genetic intended parent's name is on the birth certificate, the other same-sex intended parent may adopt the child and also be named on the birth certificate.