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Saturday, January 23, 2010
Ind. Courts - Surrogacy law in Indiana
For Friday, January 28th, the COA calendar lists the following oral argument:
- 10:30 AM - The Paternity of Infant R. (64A03-0908-JV-367) - T.G. and V.G. are a married couple and the biological parents of a child born to a surrogate mother. T.G., V.G., and the surrogate filed affidavits in support of a petition to establish paternity and maternity in T.G. and V.G. The trial court denied the petition upon finding that "Indiana law does not permit a non-birth mother to establish maternity. Indiana law holds the birth mother is the legal maternal mother." T.G. and V.G. appeal, arguing Indiana law denies women equal protection and asking that Indiana's paternity statutes be declared unconstitutional as applied to them. The Scheduled Panel Members are: Chief Judge Baker, Judges Bailey and Robb. [Where: Indiana Court of Appeals Courtroom (WEBCAST)]
Joanna L. Grossman, a professor of law at Hofstra University, has a two-part article this week on FindLaw, headed "Time to Revisit Baby M?: A Trial Court Refuses to Enforce a Surrogacy Agreement." Part I begins:
The facts underlying a contentious recent New Jersey family law case go as follows: A gay male couple, desiring to become parents together, utilized surrogacy to bring twins into the world. The sperm came from one of the men; a woman donated eggs, and another woman gestated the resulting twins. The entire arrangement was set forth, and agreed to, in a series of contracts. The purpose of these agreements was to ensure that the two women would have no parental rights with respect to the children, while the two men would both be legal fathers of the children.Part II concludes:However, a trial judge in New Jersey has just ruled that the contracts are unenforceable, and that the twins' legal parents are the man who provided the sperm and the woman who carried the twins. The ruling, A.G.R. v. D.R.H., provides an opportunity to consider the complicated, and often uncertain, law of surrogacy twenty years after the issue was foisted into public debate by the notorious Baby M case.
As is often the case with family law, social change and science have clearly outpaced the law in this context. Reasonable minds may differ on how to answer the basic legal questions surrounding surrogacy, but individuals who wish to utilize surrogacy to become parents deserve renewed attention to the issue, so that they may have certainty as to whether the child they are joyfully expecting will be legally their own.Indiana's fact situation is fairly simple, compared to the New Jersey case described by Prof. Grossman.
However, ILB readers will undoubtedly recall an earlier, and still pending, Indiana "surrogate" case, involving the Melinger twins, born to a surrogate in Indianapolis Methodist Hospital, adopted by a man from New Jersey. Here is a list of ILB entries in that case.
After reviewing the case, it seems pretty clear (IMHO) that Melinger provides no guidance on surrogacy law in Indiana. After review, it appears to involve a gestational surrogate (Zaria), with egg and sperm from unknown donors, meaning no biological connection between either Zaria or Melinger and the twins.
The facts in the case are hard to come by. It appears from published reports that "Sperm was used from a donor in California" and that according to the initial Supreme Court ruling:
[Melinger's attorney] also allowed the surrogate mother to give an untrue statement when she claimed in an affidavit that she was inseminated with sperm from Melinger and a donor, according to the ruling.The Court of Appeals on Dec. 21, 2007, had upheld the adoption granted by Hamilton Superior Court. The facts, as set out at the beginning of the COA opinion, begin:"The adoption judge's effort to deal with these successive shifting factual claims was understandably daunting," Chief Justice Randall Shepard wrote.
On April 8, 2005, Z.H., an African-American, gave birth to twin girls at Methodist Hospital. The twins were nine weeks premature and were placed in the neo-natal intensive care unit. Z.H. listed Melinger as “Father” on the girls’ birth certificates. (Ex. at 16-17.) On April 11, Z.H. and her husband signed an affidavit and consent to adoption that indicated Z.H. was inseminated with combined sperm from an anonymous donor and Melinger on September 22, 2004; husband was not the father; they did not know who the father was; and they wanted Melinger to adopt the twins.Surrogacy was not an issue in the case (as stated explicitly in the adoption court's opinion and quoted in the COA opinion), it was decided based on adoption law.
The Supreme Court reversed, on April 8, 2009, ruling: "for want of compliance with the Interstate Compact and remand with directions to comply with the Compact, and thereafter to issue further judgment accordingly. The order granting Petitioner preliminary custody may remain in effect pending completion of this directive and such eventual order as the trial court may enter." From the opinion:
Actually, it turned out that Zaria had received donor eggs, so the grounds on which Litz asserted the children to be biracial were untrue. (Id. at 54.) The earlier representation that Petitioner was a sperm donor likewise turned out to be untrue. (Tr. at 115.)The Supreme Court denied rehearing on Sept. 30, 2009.
Posted by Marcia Oddi on January 23, 2010 11:02 AM
Posted to Indiana Courts