“Disestablished” Maternity Not a Cognizable Legal Claim

Case: In the Matter of the Paternity and Maternity of Infant T.
by Mike Kohlhaas, Bingham Greenebaum Doll

HELD: A surrogate mother’s unopposed petition to “disestablish” maternity, by virtue of her not being the child’s biological mother, is not a cognizable legal claim and was properly dismissed by the trial court.

Biological Father and his wife elected to have a child through a gestational surrogate. Surrogate Mother underwent a procedure in May, 2012, whereby she was implanted with embryos created with Biological Father’s sperm and eggs from an anonymous donor. While Surrogate Mother was pregnant, a non-adversarial proceeding was filed in the Putnam Circuit Court by Biological Father, Surrogate Mother, and Surrogate Mother’s husband seeking to: (a) establish Biological Father’s paternity of the child; and (b) “disestablish” Surrogate Mother’s maternity of the child. Relevant affidavits were filed along with the petition.

The trial court denied both requests for relief, certified its order for interlocutory appeal, which the Indiana Court of Appeals accepted. While the case was pending, Surrogate Mother gave birth to the child, and genetic testing was consistent with the affidavits filed with the parties’ original petition.

I.  Biological Father’s Paternity
The trial court determined that, under Indiana law, the husband of a woman who gives birth is presumed to be the child’s legal father, absent clear and convincing evidence otherwise. While the Court of Appeals acknowledged this presumption, statute and case law provide that this presumption can be overcome with a stipulation by the birth mother and putative father. Here, all parties stipulated that Biological Father was, in fact, the biological father of the child, and this stipulation, without more, was sufficient to establish Biological Father’s paternity. The trial court erred when it denied Biological Father’s petition to establish paternity.

II.   Surrogate Mother’s Maternity
The Court of Appeals discussed the lack of statutory authority on this subject, as well as the limited relevant case law. Ultimately, the Court of Appeals held that: “[Surrogate Mother’s] petition to disestablish maternity is not cognizable. It would not be in the best interest of the child, and would be contrary to public policy, to allow the birth mother to have the child declared a child without a mother. And it would be inconsistent to allow for petitions to disestablish maternity when petitions to disestablish paternity are forbidden.”

The Court of Appeals noted, however, that in a maternity case, maternity could theoretically be “indirectly disestablished” by establishing the maternity of another woman – much the same as Indiana law allows one to “indirectly disestablish” the paternity of one man by establishing the paternity of another. But, the Court added this must be established by clear and convincing evidence, not mere affidavit. [Note: the Court’s opinion does not specifically address this point, but it seems to suggest that maternity can be established only with clear and convincing evidence that the putative mother is the biological mother of the child, meaning that, at least in this case, Biological Father’s wife – who was not a party to the case – could not petition for maternity, since it was uncontroverted that the eggs were provided by a third party donor.]

Thus, the trial court’s denial of Surrogate Mother’s motion to disestablish maternity was properly denied and affirmed accordingly.

To view the text of this opinion in its entirety, click here: In the Matter of the Paternity and Maternity of Infant T.


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The Matrimonial Law Group of Bingham Greenebaum Doll, LLP is one of the largest full-service matrimonial and family law practices in the State of Indiana. We represent clients in a wide spectrum of family law matters, including premarital agreements, cohabitation, separation, divorce (especially involving high net worth individuals and/or complex asset issues), custody, parenting arrangements, adoption, and domestic partnerships. Bingham Greenebaum Doll, a multidisciplinary law firm serving regional, national, and international clients, is the fourth-largest law firm in Indiana. The firm’s main practices include corporate, property, litigation, labor, government law, and personal services law. Visit the firm’s website at www.bgdlegal.com.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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