Indiana Code 31-20-1-1 makes gestational and traditional surrogacy contracts void and unenforceable as against public policy. Despite this, gestational carrier arrangements in Indiana continue and some courts will grant pre-birth parentage orders establishing the rights of the intended parents.
Although the following guide can give you a better understanding of the general rules and regulations of surrogacy in Indiana, it is not meant to be used as legal advice. It is important to consult with an experienced attorney to guide you through your unique journey.
Below is a list of some of the most frequently asked questions about surrogacy in Indiana.
Yes. Although gestational surrogacy contracts are considered void and unenforceable in Indiana, surrogacy itself is not illegal. For more information, you can refer to the Indiana Code Title 31, Article 20, Chapter 1: Indiana Code Title 31.
Yes. Traditional surrogacy is not illegal in Indiana; however, traditional surrogacy agreements, similar to gestational agreements, are prohibited by statute. Courts typically do not grant pre-birth orders in traditional surrogacy arrangements, requiring intended parents to complete a post-birth adoption process to obtain parental rights. Detailed information can be found in the Indiana Code Title 31, Article 20, Chapter 1: Indiana Code Title 31.
Yes. While compensated surrogacy is not explicitly prohibited by statute, the terms of all surrogacy contracts are statutorily unenforceable in a court of law. Consequently, any provisions detailing surrogate compensation may not be upheld if challenged. For legislative details, refer to the Indiana General Assembly’s records: House Bill 1267.
Indiana law prohibits and renders surrogacy contracts void and unenforceable. Nonetheless, gestational surrogacy continues, and, as mentioned above, some courts may grant pre-birth orders under specific circumstances.
Given the lack of specific guidelines for when an Indiana judge may uphold the validity of a surrogacy arrangement, it is crucial for parties to clearly and specifically articulate their intentions, desires, roles, and responsibilities. This clarity provides a framework for dispute resolution should issues arise. Both intended parents and their surrogate should be represented by separate attorneys to ensure that both parties’ rights and interests are protected. These attorneys will negotiate a contract that addresses at least the following:
Only after this contract is finalized will fertility clinics and medical professionals begin the medical process of surrogacy. If you require more specific legal advice, please refer to the Legal partners recommendation.
Pre-birth (and post-birth) orders are not typically permitted in Indiana. However, some courts may grant pre-birth orders under select circumstances. Typically, pre-birth parentage orders are granted if medical documentation confirms that the child is genetically related to both intended parents (i.e., no egg or sperm donor was used). Currently, only heterosexual couples have been granted parentage orders in Indiana. As a result, same-sex couples should exercise caution before proceeding with a surrogacy arrangement in this state. For more information on LGBTQ+ rights in Indiana, you can refer to the following resource: LGBTQ+ Rights in Indiana.
Below is a list of some of the most frequently asked questions about surrogacy in Indiana:
A: No. Surrogacy contracts are statutorily prohibited and held void as against public policy, creating legal risk for any intended parent or surrogate who enters into surrogacy in Indiana.
A: No. There are no particular laws for parents outside the United States who complete a surrogacy in Indiana; they are subject to the same surrogacy restrictions as domestic intended parents. It is important, however, that intended parents from another country speak with an immigration lawyer to ensure they follow the proper legal steps for taking their child home.
A: If intended parents are unable to obtain a parentage order, they will need to complete an adoption post-birth. The biggest determining factor over whether intended parents will need to complete an adoption after birth is the jurisdiction and the court overseeing their surrogacy case. While some courts will grant pre-birth orders to unmarried and married intended parents with at least one genetic relationship to the child, other courts will not.
A: Yes. Second-parent adoptions are available to unmarried couples who cannot obtain a pre-birth order. Stepparent adoptions are available to married couples.
A: When an egg or sperm donor is used and at least one of the intended parents is genetically related to the child, a pre-birth order may be possible but results vary greatly by county and judge. If neither intended parent is genetically related to the child, they will need to go outside the state to obtain a second-parent adoption.
A: Same-sex surrogacy is not illegal but, as mentioned above, gestational surrogacy contracts are held void and unenforceable; in addition, only heterosexual couples have been granted a parentage order in Indiana. As a result, same-sex couples should exercise caution before proceeding with a surrogacy arrangement in this state
A: There are no additional laws impacting same-sex surrogacy but it is important to note that there are no cases yet of same-sex couples obtaining a pre-birth order in an Indiana surrogacy for both members of the couple. Usually, the non-genetically related parent will need to complete an adoption after birth.
Michele L. Jackson
Carmel, IN
mjackson@hardenjacksonlaw.com
hardenjacksonlaw.com
(317) 569-0770
Joel D. Kirsh
Indianapolis, IN
indianaadoption.com
(317) 575-5555
Stephen M. Kirsh
Indianapolis, IN
indianaadoption.com
(317) 575-5555
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