Like several other states in the U.S., Indiana surrogacy laws declare that all surrogacy contracts are void and unenforceable. This does cause potential complications and risks for surrogates and intended parents interested in pursuing a surrogacy in Indiana, but the surrogacy process itself is not outlawed in this state.
Before you decide to begin a surrogacy in Indiana, it’s important that you understand what this process will look like, as well as the potential risks and liabilities you will be subject to because surrogacy contracts are unenforceable. The best way to learn more is by contacting a local Indiana surrogacy attorney with details of your particular surrogacy situation.
In the meantime, you can find answers to commonly asked questions about Indiana surrogacy laws below.
Q: Is surrogacy legal in Indiana?
A: In Indiana, surrogacy contracts are “void and unenforceable.” Therefore, any surrogacy agreement comes with a high degree of legal risk for intended parents and surrogates. Most legal professionals would advise against completing a surrogacy in Indiana, although there are a number of intended parents and surrogates in this state who complete this family-building process.
Specifically, surrogacy laws in Indiana state that it is against public policy for a court to enforce a surrogate agreement that requires a surrogate to:
- Provide a gamete to conceive a child
- Become pregnant
- Undergo or consent to undergo an abortion
- Undergo medical or psychological treatment or examination
- Use a substance or engage in activity only in accordance with the demands of another person
- Waive parental rights or duties to a child
- Terminate care, custody or control of a child
- Consent to a stepparent adoption
Any contract that uses these terms is void in Indiana.
Q: Is compensated surrogacy legal in Indiana?
A: There are no surrogacy laws in Indiana addressing a woman’s right to receive compensation for her services, so compensated surrogacy is currently legal (although the terms of such a surrogacy contract are unenforceable in a court of law).
Q: Is traditional surrogacy legal in Indiana?
A: Traditional surrogacy is not specifically illegal in Indiana, although any traditional surrogacy contracts are unenforceable, just like any gestational surrogacy contracts. Most courts will refuse to grant pre-birth orders in traditional surrogacies, so intended parents must complete an adoption after birth for this kind of Indiana surrogacy.
Q: What does a surrogacy agreement in Indiana cover, and how does the legal process work?
A: Beyond specifying that surrogacy contracts are void and unenforceable, there are no surrogacy laws in Indiana that address the creation of surrogacy agreements. Surrogacy agreements may need to be created as “memoranda of understanding” rather than legal contracts; speak with a local Indiana surrogacy attorney for more information about creating a surrogacy agreement that addresses your surrogacy goals and expectations.
Q: Are surrogacy contracts (whether compensated or altruistic) enforceable in Indiana?
A: Indiana surrogacy contracts are not enforceable, creating legal risk for any intended parent or surrogate who enters into a surrogacy in Indiana.
Q: What are the surrogacy laws in Indiana on parentage orders?
A: Despite the Indiana surrogacy laws against surrogacy contracts, some judges will grant parentage declarations pre-birth. The availability of these parentage orders will vary based on the surrogacy situation and the intended parents’ characteristics.
However, a 2013 ruling from the Indiana Court of Appeals refused to disestablish the maternity of a gestational carrier declaration pre-birth. This ruling now restricts the ability of courts to issue parentage orders where one intended parent has no genetic relationship to the child.
In order to successfully obtain a pre-birth order, it must be medically documented that the embryo(s) transferred were 100 percent genetically related to both intended parents.
Q: Are there any particular laws for parents outside the U.S. who complete a surrogacy in Indiana?
A: No. The Indiana surrogacy laws that apply to domestic intended parents also apply to international intended parents.
Q: When do intended parents need to complete an adoption after birth?
A: The biggest determining factor over whether intended parents will need to complete an adoption after birth is the jurisdiction and the court overseeing their surrogacy case. While some courts will grant pre-birth orders to unmarried and married intended parents with at least one genetic relationship to the child, other courts will not — requiring intended parents to complete a post-birth adoption in order to establish their parental rights.
Q: Does Indiana allow second-parent adoptions? Who would need to complete a second-parent adoption vs. a stepparent adoption (if applicable)?
A: Second-parent adoptions are available in Indiana for any unmarried couples who cannot obtain a pre-birth order for their Indiana surrogacy. Married intended parent couples can usually complete a stepparent adoption in cases where they can’t obtain a pre-birth order with both parents listed.
Q: What happens in cases where intended parents use a donor egg, sperm or embryo?
A: Again, what influence a donor gamete has on the progression of an Indiana surrogacy will often be determined by the jurisdiction and judge overseeing the surrogacy. In some cases, those using a donor gamete will still be able to obtain a pre-birth order; in other cases, a donor gamete may necessitate a post-birth adoption order.
Indiana surrogacy laws only complicate this issue. One published case, Paternity and Maternity of Infant T, ruled that the gestational carrier is always the mother in surrogacy cases, but judges in other cases have ruled that intended parents are legal parents of their child.
Because of these complications, an experienced surrogacy attorney in Indiana is always needed to ensure the proper legal steps are followed.
Q: Are there any additional laws impacting same-sex surrogacy in Indiana?
A: No. However, there are no cases yet of LGBT intended parents obtaining a pre-birth order in an Indiana surrogacy for both members of the couple. Usually, the non-genetically related parent will need to complete an adoption after birth.
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If you are considering a surrogacy in Indiana, please contact a local surrogacy professional — such as a surrogacy attorney — to learn more about the process that awaits you. Because surrogacy in Indiana can be complicated, your personal circumstances will play a large role in what legal and practical steps you will need to take to keep your rights and interests safe every step of the way.
American Surrogacy can help by serving as your surrogacy agency through this life-changing process. Our surrogacy specialists can always provide the support and case management services you need to make sure every detail is handled professionally. To learn more about our surrogacy program today, please call 1-800-875-2229(BABY).
American Surrogacy makes no guarantee that the information in this article is accurate and up to date, as surrogacy laws in Indiana are always subject to change. This article is not intended to be and should not be taken as legal advice. Please contact an Indiana surrogacy attorney to learn more about the current legal state of surrogacy in Indiana.