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STATE SURROGACY LAW:

Indiana Surrogacy Laws

Overview

According to Indiana Code §31-20-1-1 (p.421), surrogacy contracts of all kinds are considered void and unenforceable. According to this statute, “The general assembly declares that it is against public policy to enforce any term of a surrogate agreement and that surrogate agreements formed after March 14, 1988, are void.” 

This doesn’t mean that surrogacy itself is illegal, but rather that the contracts aren’t binding, recognized nor enforceable. This increases the legal risk for both Intended Parent(s) and surrogates. Despite the risks, however, surrogacy is practiced in Indiana and some courts will grant pre-birth orders depending on circumstances.

Types of Surrogacy Available in Indiana

Can a parentage order be obtained for the following?

Although surrogacy contracts are void and unenforceable in Indiana, surrogacy procedures are not illegal or punishable as a crime.

Although traditional surrogacy itself isn’t prohibited, many attorneys and agencies advise against it due to the increased legal risks involved because a surrogate legally can’t be forced to give up her parental rights. Safe practice dictates an adoption following the birth of the child. However, again, surrogacy contracts are void and unenforceable in Indiana.

Gestational surrogacy

YES

Commercial surrogacy

YES

Traditional surrogacy

YES (but will involve adoption)

Altruistic surrogacy

YES

Parentage

Who can be declared as the parent(s) of a child from a surrogate via a court parentage order?

Married Heterosexual Couple Married Same-Sex Couple Unmarried Heterosexual Couple Unmarried Same-Sex Couple Single
Two Genetic Connections 💚 💚
One Genetic Connection 💚 💚 💚
No Genetic Connections
Married Heterosexual Couple Married Same-Sex Couple Unmarried Heterosexual Couple Unmarried Same-Sex Couple Single
Two Genetic Connections 💚 💚
One Genetic Connection 💚 💚 💚
No Genetic Connections
Show Court Parentage Order Collapse

💚 – Both Intended Parent(s) can be named on the parentage order

💛 – Only a genetic Intended Parent can be named on the parentage order. A non-genetic Intended Parent will need to establish parentage via a second or stepparent adoption following birth.

Courts may grant parentage orders if a gestational carrier agreement was created in a state where surrogacy is supported by law and the agreement is in line with that law. In essence, the court is recognizing the validity of the contract under that state’s law and issuing a parentage order based on what would happen in that state. However, receiving a parentage order does not imply that the surrogacy agreement will be recognized by the courts in Indiana. 

How are Intended Parent(s) Listed on the Birth Certificate?

Intended Parent(s) may be listed as Father-Mother or Father or Mother.

If using a pre-birth order, the gestational carrier’s name won’t go on the birth certificate. When using a post-birth order, the initial birth certificate will bear the name of the carrier and intended father, but this copy will be sealed. An amended birth certificate will be issued by the Department of Vital Statistics

Rights of Egg or Sperm Donor(s)

Case law has addressed the rights of egg and sperm donors, but there has been no definitive ruling one way or the other.

Surrogacy Steps in Indiana

Surrogacy Process in Indiana

Select your agency if applicable

Match with a gestational carrier

Complete medical and psychological evaluations

Select attorney and discuss legal options

Indiana doesn’t enforce surrogacy contracts. As a result, most Indiana attorneys will not draft surrogacy contracts.

Begin IVF cycle with surrogate

Pre-birth order

Some Indiana Courts (depending upon county) will grant pre-birth orders. Proceedings generally begin after the first trimester.

Delivery and birth certificate finalization

Birth Certificate Timeline

Birth certificate

6-8 weeks

Legal and medical steps involved in the surrogacy process may differ from case to case. Please speak with your agency and attorneys about how the process might look for you.

Court Processes

Surrogacy Contracts

Gestational and traditional surrogacy contracts in Indiana aren’t recognized or enforced by the state.

Independent Counsel

Independent counsel is strongly recommended, but not required, for all parties involved in a surrogacy agreement.

Requirements for Surrogates and Intended Parent(s)

Indiana has no statutory requirements that must be met for surrogates and Intended Parent(s) to participate in a surrogacy agreement. However, agencies and fertility clinics have their own requirements based on the American Society for Reproductive Medicine, the American Medical Association, and the Academy of Adoption and Assisted Reproduction Attorneys

Birth Orders

Do courts issue pre-birth orders?

DEPENDS UPON THE COUNTY OF FILING

Do courts issue post-birth orders?

DEPENDS UPON THE COUNTY OF FILING

Are hearings required to obtain either pre- or post-birth orders?

VARIES

Generally, Indiana courts don’t issue parentage orders for surrogacy cases, but it may be possible in some cases, particularly if both Intended Parent(s) share a genetic connection to their child. Speak to an experienced attorney to explore your surrogacy case and your best options.

Bases of Venue

What are the bases of venue?

County of child’s birthplace; residency within the county; or consent to jurisdiction and venue by all parties.

Do rulings vary by venue?

YES

Can you file a motion to waive venue?

NO

International Issues

Because surrogacy contracts aren’t recognized, International Intended Parent(s) may find doing surrogacy in Indiana a challenging prospect. International Intended Parent(s) will have additional legal steps to complete before their return home regarding their country’s immigration and citizen laws that impact the child. It’s imperative the international Intended Parent(s) speak with an experienced attorney in their home country about their situation. The law of more than one country will need to be considered if the Intended Parent(s) are citizens or residents of more than one country.  

Residency Requirements

Does Indiana have any residency requirements for out-of-state or International Intended Parents?

NO

Courts may require residency for adoption proceedings.

Birth Certificates

Can an international same-sex male couple receive an initial birth certificate naming the biological father and gestational carrier?

LIKELY

Can they obtain a birth certificate naming only the Intended Parent(s) with no mention of the gestational Carrier?

LIKELY

Passport Timeline

6-8 weeks after submitting birth certificate.

Passports can be expedited for a 2-3 week delivery with an extra fee. Intended Parent(s) can also visit a regional passport agency to receive one within 1-2 business days.

Passports are regulated at the federal level in the United States. To learn more about the process of receiving a US passport, visit Travel.State.gov.

Consulting Attorneys

Joel Kirsh
Kirsh & Kirsh Adoptions
2930 E 96th Street 
Indianapolis, IN 46240
(317) 575-5555
joel@kirsh.com
www.indianaadoption.com 

Michele Jackson
Harden Jackson LLC 
631 N Rangeline Rd 
Carmel, IN 46032
(317) 569-0770
mjackson@hardenjacksonlaw.com
www.hardenjacksonlaw.com

Legal Disclaimer

The content contained in this website is provided for informational purposes only. Content contained herein may or may not reflect the most current legal information on the subject; accordingly, this website is not promised to be correct or complete at any given time. Outcomes referenced should not be interpreted as an indication of future outcomes. Love & Kindness Surrogacy explicitly disclaims all liability for actions taken or not taken based on the contents of this website.

This website does not constitute a replacement for legal advice or counsel. Always consult an attorney before beginning the surrogacy process.

Last updated October 2019

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