Feature Article: The Status of Pre-Birth Parentage Orders by Jennifer J Hostetter

Very little has changed for assisted reproduction law in Indiana since the opinion In re Paternity and Maternity of Infant R was published by the Indiana Court of Appeals in 2010; however, this decision did significantly help intended parents establish their parentage for their unborn child. Intended parents who are biologically related to their child carried by a surrogate can petition the court for a pre-birth parentage order. Among numerous things, a pre-birth parentage order allows the intended parents to place their names on the birth certificate at the hospital and allows the hospital to discharge the newborn directly to the intended parents.

Indiana Code allows for the establishment of a Father’s parentage of a child. But because it is presumed that a woman who gives birth to a child is the child’s biological mother, there are no provisions on the establishment of maternity. There are also no specific provisions on the establishment of parentage rights when a child is born through the use of assisted reproduction. With increasing reproductive technologies, the need for the establishment of legal parentage for both parents exists and because it is well settled law that it is in the best interests of a child to have their biological parentage established the paternity statutes can be used for intended biological mothers attempting to establish their maternity. 

Intended parents seeking to establish their parentage by pre-birth order can file a petition establishing their paternity and maternity. The carrier can agree to the establishment of the intended parents’ parentage, but she cannot petition the court to disestablish her maternity because Indiana paternity statutes do not provide a procedural template to disestablish paternity. If the carrier is married, it is necessary that her husband be made a party to the proceedings as well because he would be recognized as the child’s legal father until the intended biological father’s paternity is established. 

Indiana paternity statutes also allow paternity to be established without the need for a hearing if the mother and alleged father stipulate that he is the father or they file a joint petition alleging he is the child’s biological father. It is possible to petition the court for a pre-birth order without the need for a hearing. However, there is no statute on point and that is likely to be determined on a case by case basis. 

I believe it is important that the intended parents and the carrier be represented by independent legal counsel. The American Bar Association and the American Society for Reproductive Medicine’s guidelines state that the carrier and intended parents should have separate legal representation. You should always consult with your ART team, including your clinic/agency, medical providers and attorneys.

Information provided by the law firm of Kirtley, Taylor, Sims, Chadd & Minnette, PC. For more information contact them at 317-550-4333 or visit them online at www.KirtleyTaylorLaw.com.