GESTATIONAL SURROGACY LAW INDIANA
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.
Is Gestational Surrogacy Legal in Indiana?
Yes. Although gestational surrogacy contracts are held void and unenforceable in the state, surrogacy itself is not illegal.
Is Traditional Surrogacy Legal in Indiana?
Yes. Traditional surrogacy is not illegal in Indiana but traditional surrogacy agreements, similar to gestational agreements, are prohibited by statute. Courts will not grant pre-birth orders in traditional surrogacy arrangements, instead requiring the intended parents to complete a post-adoption process to obtain parental rights.
Is Compensated Surrogacy Legal in Indiana?
Yes. Because it is not specifically prohibited by statute, compensated surrogacy is technically legal. However, the terms of all surrogacy contracts are statutorily unenforceable in a court of law and therefore any provisions detailing surrogate compensation will likely not be upheld if challenged.
Creating an Indiana Surrogacy Contract
Indiana statutorily prohibits surrogacy contracts and holds them void and unenforceable. Nonetheless, gestational surrogacy continues and, as mentioned above, some courts will grant pre-birth orders.
Since there is not a specific set of guidelines for when an Indiana judge may uphold the validity of a surrogacy arrangement, parties should articulate their intentions, desires, roles, and responsibilities as clearly and specifically as possible to provide the proper framework for dispute resolution should an issue arise. Both intended parents and their surrogate must be represented by separate surrogate attorneys to ensure both parties’ rights and interests are protected. These attorneys will negotiate a contract that addresses at least the following:
- The rights and responsibilities of each party
- Any potential risks and liabilities and the steps to take should they occur
- Surrogate compensation and other financial information, like surrogacy insurance
- Agreements on sensitive issues like selective reduction and termination
- Contact expectations
- And more
Only after this contract is finalized will fertility clinics and medical professionals begin the medical process of surrogacy.
Determining Legal Parentage in Indiana
Pre-birth (and post-birth) orders are not typically permitted in Indiana. However, some courts are willing to grant pre-birth orders under select circumstances. Typically, pre-birth parentage orders will only be granted if medical documentation is provided confirming that the child is 100% genetically related to both intended parents (meaning that no egg or sperm donor was used). Currently, 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.
Same-Sex Surrogacy in Indiana
Q: Is Same-Sex Surrogacy Legal in Indiana?
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
Q: Are There any Additional Laws Impacting Same-Sex Parenting in Indiana?
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.
Q: Are Surrogacy Contracts (Whether Compensated or Altruistic) Enforceable 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.
Q: Are There Any Particular Laws for Parents Outside the United States Who Complete a 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.
Q: When do Intended Parents Need to Complete an Adoption After Birth?
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.
Q: Does Indiana Allow Second-Parent Adoptions? Who Would Need to Complete a Second-Parent Adoption vs. a Stepparent Adoption (If Applicable)?
A: Yes. Second-parent adoptions are available to unmarried couples who cannot obtain a pre-birth order. Stepparent adoptions are available to married couples.
Q: What Happens in Cases Where Intended Parents use a Donor Egg, Sperm or Embryo?
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.
REPRODUCTIVE LAW PRACTITIONERS
Michele L. Jackson
Joel D. Kirsh
Stephen M. Kirsh
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