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.
The recognition of genetic parenthood resulted from the appellate court's 2010 decision that even if a surrogate mother is involved, a child's biological parents are the legal parents if they can prove the child is genetically theirs.
"But in this case, the biological mother is unknown," said Litz, whose Surrogate Mothers Inc. has arranged hundreds of surrogate pregnancies for couples across the U.S. and overseas. "This was a surrogate pregnancy with an egg transferred from an anonymous donor."
Litz said he offered genetic testing results that proved the surrogate mother was not the child's genetic parent.
Litz said Friday that he intends to ask the Indiana Supreme Court to review the decision, which he believes is the first such ruling in the U.S.
From a practical standpoint, the ruling is moot, because Litz said the recipient couple, who lives in another state, already has the baby.
"They have the child. They've had the child since it left the hospital," he said. With the husband's fatherhood recognized, all that is required is for his wife to adopt the child, Litz said.
But that isn't enough, he said.
"All they want is a simple acknowledgment of what we know is true," Litz said.