Court To Decide Legal Mom Of Baby Born To Surrogate

Judge: State Law Doesn't Allow Women To Establish Maternity

Lawyers for the state and for a couple who parented a son by in vitro fertilization agree that the genetic mother should be recognized as the child's legal mom, but a judge said it goes against state law.

A Porter County judge argued that Indiana's paternity statute applies only to men, and that it does not allow a non-birth mother to establish maternity, 6News' Derrik Thomas reported.

The husband and wife in the case donated sperm and egg that were combined in vitro, and the embryo was implanted in the wife's sister, who gave birth.

But the judge ruled that the birth mother was the baby's legal mother under state law.

The Indiana Court of Appeals heard legal arguments in the case of "Infant R" on Thursday. The three-judge panel seemed to be grasping for a solution that wouldn't require overturning state law.

"What is perplexing is how do we do this legally? There are a variety of ways we can do it. One or two is the correct way," said Judge Cale Bradford.

The couple's attorney, Steven Litz, argued that the law does not have to be made unconstitutional, but that the key is the interpretation.

"When the statute says a man can establish paternity, it must also mean that his wife can establish maternity," he said. "That sends a clear message to judges that Indiana cares just as much about a woman's right to be a mom as it does about a father's right to be a dad."

The court of appeals said it will give a timely response in the matter.

Among the 50 states, 35 do not have laws governing surrogate cases.

Indiana and Kentucky consider surrogacy contracts voids, but do not penalize parents involved, while Michigan voids the contracts and punishes those involved with a fine of $50,000 and five years in prison.

Illinois allows surrogate contracts, but requires one parents have a genetic relationship with the child, while the practice is banned in Arizona and Washington, D.C.