INDIANAPOLIS – The state appeals court has decided that in Indiana, a surrogate mother is the legal mother, even if the child was conceived with an egg from an unknown donor and everyone agreed for the baby to become a third woman's child.
In a 3-0 decision Thursday, the Indiana Court of Appeals agreed with a lower court that there was no state law that allowed a woman to “de-establish” the maternity of the surrogate, but overruled the judge's decision that the surrogate's husband was the child's legal father.
Under the arrangement set up by Monrovia attorney Steven Litz, the husband of a woman who could not conceive artificially fertilized an ovum, whose donor remained anonymous. A married surrogate mother carried and gave birth to the infant, who was to be given to the first couple.
The man who had donated the sperm and the surrogate mother and her husband, last October filed a petition to “establish paternity and de-establish maternity” in a Putnam County court. But the local judge threw out the agreement, holding that the birth mother was the legal mother and her husband was the legal father unless a paternity test proved otherwise.
The Court of Appeals overruled part of a Putnam County judge's decision and held that the first woman's husband, who is the biological father, has paternal rights.
However, Judge Edward Najam Jr. wrote Thursday that state law presumes the birth mother is the child's biological mother unless another woman can prove the infant is her genetic offspring.