STATE SURROGACY LAW:

Indiana Surrogacy Laws

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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 genetic connection.

Types of Surrogacy Available in Indiana

Can a parentage order be obtained for the following?

Gestational surrogacy

YES

Altruistic surrogacy

YES

Traditional surrogacy

YES, 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. A full adoption will be required after the birth.

Parentage

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

– 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.

The Indiana courts favor married couples, whether with one or two genetic connections. For unmarried couples with one genetic connection, a pre-birth order can be obtained naming the genetic parent on the birth certificate. A second-parent adoption would be required for the non-genetic parent through a post-birth order.

Courts may also 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?

Yes, although not all judges or venues will provide pre-birth orders

Do courts issue post-birth orders?

Yes, although not all judges or venues will provide post-birth orders

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

Varies, based upon the bases of venue, but typically a hearing is not required for pre-birth or post-birth orders

Bases of Venue

What are the bases of venue?

No bases of venue is required. All parties involved, through written agreement, can choose the bases of venue and judge for their case

Do rulings vary by venue?

YES

Can you file a motion to waive venue?

YES

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?

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, but this will depend on the judge chosen for the case and the bases of venue.

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

LIKELY, through a pre-birth order for the genetic parent and a post-birth order with the non-genetic parent. This will depend on the judge chosen for the case and the bases of venue.

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

Assisted with Updates May 2023

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 May 2023