Surrogacy Laws in Indiana
- Is Indiana a surrogate friendly state: Yes.
- Can Parent(s) obtain a birth order without an adoption: Yes.
- Can birth order be obtained without a genetic connection to Child: Yes. However, in a situation with 2 intended parents that are both not genetically related, we can only obtain parentage for 1 intended parent if the 2 intended parents are unmarried.
Summary of Indiana Surrogacy Law
Indiana does not prohibit the act of surrogacy itself and recent rulings by Indiana courts have been favorable to surrogacy.
Indiana has an antiquated statute, I.C. §31-20-1-1 (over 25 years old), declaring that surrogacy agreements are void and unenforceable. While technically accurate, the legislative history indicates that the focus of said statute is traditional surrogacy (as gestational surrogacy was not fully and thoroughly contemplated or differentiated at the time). Therefore, courts may apply it in both traditional and gestational surrogacy situations. However, there is no established case law to provide direction on the interpretation of the statute.
Notwithstanding the statute, parties enter into GSAs in the State of Indiana for the following reasons:
They are required by reproductive endocrinologists, fertility clinics, and surrogacy agencies.
They delineate the parties’ expectations, liabilities, and responsibilities.
There is potential for enforcement in Indiana based upon the principles of equity, performance, and the best interests of the child which are all well-established legal basis in Indiana.
Surrogacy attorneys and agencies that have been working in Indiana understand the need for GSAs in the State of Indiana. While there are several states that have statutory laws on the requirements and enforceability of GSAs, Indiana’s position is not extremely different from many of those states.
Even with some potential heightened risks of using Indiana versus other states, many individuals continue to use Indiana because they determine those risks are similar in all states, or that those risks are slight compared to the many benefits of surrogacy in Indiana. Most notably, Indiana has favorable laws on establishing parentage, particularly a Court of Appeals decision from 2010, In Re Infant R, which provides for the establishment of parentage (obtaining pre-birth and post-birth orders) in the biological parents of a child born through gestational surrogacy. Therefore, we believe that most IPs are at relatively low risk for not receiving legal rights in the child. Indiana has strong case law providing that the Intended Parent(s) will be the legal parent(s) of the child, which can be based upon biological connection, best interest, and/or marriage presumption. Other benefits of surrogacy in Indiana include: a quicker process for matching with an Indiana gestational surrogate, the ease of the process for establishment of parentage, the quality of potential Indiana gestational surrogates, and the lower costs of using a gestational surrogate in Indiana as compared to other states.