Thoughtful Guidance From Skilled Attorneys

The Status of Same-Sex Adoption in Indiana or, As we in Our Firm Call it, Adoption and Children of Same-Sex Marriage

| Oct 28, 2017 | Firm News

Indiana is now required to recognize same-sex
marriage
            For a historical background, prior
to
Baskin v. Bogan and Bowling v. Pence same-sex marriage was not legal in
Indiana.  Marion County previously had a
local rule which required the adopting couple be married for a year before
final hearing for an adoption.  As
same-sex marriage was not legal, Marion County was allowing couples to petition
the court to waive such rule.  As such in
most counties in Indiana same-sex couples could adopt even though they were not
married or their marriage in another state or country was not recognized by
Indiana.  Marion County’s current local
rule only requires that couples be married OR cohabitate for one year prior to
final hearing.  LR 49-PR00
Rule 417
.  Now that same-sex marriage
is legal a question arises as to whether the courts will still allow same-sex
couples who are not married to adopt a child if the county has a local rule
requiring that the adoptive couple be married.
Indiana
has refused to fully recognize same-sex marriage
            One would think that now same-sex
couples can marry then they would fall under the same rules as opposite-sex
couples.  Another related issue is if one
woman of a same-sex couple has a child during the marriage should the non-birth
mother adopt.  The official position of
the State of Indiana is yes the non-birth mother should be required to adopt.  Currently under the injunction issued in
Henderson v.  Adams,
the state is placing names of the wife of the birth mother on birth
certificates of children born to their marriage just as they do male spouses of
women having children.  This case is
currently under advisement after oral argument and briefing before the United
States Court of Appeals for the Seventh Circuit.  
Should
the wife of a woman who has a child by artificial insemination adopt?
            Still, should you adopt?  I am aware of a large employer in the State
of Indiana which grants paternity leave to husbands of birth mothers but does
not to wives of birth mothers unless the wife of the birth mother adopts the
child.  In some courts, you may not be
able to finalize an adoption within the time limit for maternity or paternity
leave, so a married lesbian couple who has a child may effectively be denied an
employer benefit that is only available to opposite-sex married couples.  I would expect if the employers do not change
this policy, that litigation will be forthcoming.
Did the parties have a valid sperm donor
agreement?
Even if the parties are married when the child
is born, and the child is the result of artificial insemination, your inquiry
does not end there.  You should make sure
that there was a sperm donor agreement in place before the artificial
insemination takes place or at least before the child is born.  See
In the Matter of the Paternity of M.F., 938 N.E.2d 1256, Ind. Ct of App., 2010.  In that case the birth mother and her partner
terminated their relationship and birth mother sought public assistance.  As a result the local prosecutor filed a
paternity action against the sperm donor, since the birth mother must agree to
pursue child support from the responsible party as a condition of obtaining
some public assistance.  This case if a
good example of what happens if you do not proceed carefully.    Birth mother had 2 children through artificial
insemination using sperm from the same man.
After the artificial insemination but before the child was born, the
parties executed a sperm donor agreement for the first child.  When they decided to have another child, the
parties assumed the same agreement applied to the second child.  The court on appeal, ruled that the contract
was ambiguous and was not sufficient to cover both children.  Another important part of this case is the
two (2) women were not married.  Interestingly
if the parties were married you could end up with a prosecutor going after both
the sperm donor and the non-birth mother wife.
It is important that the sperm donor agreement be properly drafted.  Drafting a sperm donor agreement is not
something someone should do for themselves nor should they use an attorney who
is not familiar with such documents.  An
example of an issue the agreement in M.F.
used the term “child” in some instances and “children” in others. Some
attorney’s legal malpractice insurance may not cover them for drafting these
agreements due to the consequences of it not being properly drafted.  Consider if your sperm donor agreement is later
held unenforceable who is responsible for
the child support, college, or who has parenting and custody rights of
the child.  The State of Indiana has
taken the position that such agreements are not enforceable since the Indiana
Supreme Court has not addressed the issue directly.
Adopt or not adopt?
  The Indiana Court of Appeals ruled in  Gardenour, cited below, that the child is the
child of the marriage and legal child.  Many
people do not have the money nor do they want to go through the process of
someone investigating them in order to parent their child.  If the couple is not married then adoption is
required in order for the non-birth parent to have legal rights.  See
A.C. v N.J., 1 N.E.3d 685, which is a case where the non-birth partner
sought to enforce an agreement of the parties to treat them both as parents. 
            What
is the responsibility of the of birth wife if there is no adoption?
Under current Indiana law you would not have
to adopt if the child is born by artificial insemination with a properly
executed sperm donor agreement and where both wives agreed to the birth, for
you to be able to seek custody, support, or parenting time.  See
Gardenour v.
Bondelie
, 60 N.E.3d 1109 (Ind. Ct. App. 2016), transfer denied, 2017
WL 897559 (Ind. Mar. 2, 2017).  In that
case the parties were a lesbian couple who had a registered domestic
partnership agreement from California.
During their relationship Ms. Gardneour was artificially inseminated with
the agreement of Ms. Bondelie.  Their
relationship ended in divorce.  Actually
the case stated, “
The trial court issued the following Findings of Fact,
Conclusions Thereon & Decree of Termination of Domestic Partnership,
recognizing the couple’s RDP agreement established a spousal relationship,
terminating the RDP, awarding Kristy primary physical custody of C.G .,
awarding Denise joint legal custody and parenting time, and ordering Denise to
pay child support.”  Transfer was sought
and the Indiana Supreme Court denied transfer.
Interestingly enough, the State of Indiana filed an amici brief asking the Indiana Supreme Court to grant
transfer.  The Supreme Court denied
transfer so Gardneour is the current
state of the law and I doubt it changes as far as it goes as it follows the
reasoning in
Levin v. Levin, 645 N.E.2d 601,
Ind. Sup. Ct, 1994.  Levin was an
identical case but was an opposite-sex married couple that had a child by
artificial insemination.  The court in
Levin decided that the husband was the father. 
            Many
issues remain even after Gardenour that
have not been answered.  Is the child a
child of the non-birth mother for inheritance purposes? For insurance purposes?  The court in Gardenour used the terms child born of the marriage and legal
parent interchangeably. According to the Indiana Probate code
29-1-1- 3.
(a) “The following definitions apply throughout this article, unless otherwise
apparent from the context:
(1)  ‘Child’
includes an adopted child but does not include a grandchild or other more
remote descendants, nor, except as provided in
IC 29-1-2-7, a
child born out of wedlock.” 
If you read IC 29-1-2-7, it speaks in terms of a child born out
of wedlock and only speaks in terms of Mother and Father. 
The State in Henderson, supra,  has argued that a child born through
artificial insemination is a child born out of wedlock.  Under I.C. 29-1-6-1(e) a child born out of
wedlock only inherits from its mother unless the “father” has been established
under I.C. 29-1-2-7. These are either through a paternity suit or divorce or a
paternity affidavit.    A review of the case law indicates that the
child is a legitimate child of the marriage for inheritance purposes.  The only case reported on the definition of
child is Byers v. Womack, 367 F.2d 816 (7th Cir .App., 1966)
where the court stated, “‘It is a rule of construction that prima facie the
word ‘child,’ ‘children,’ or other terms of kindred, when used either in a
statute or will, mean legitimate child or children or kindred.’ Truelove v.
Truelove
(1909), 172 Ind. 441, 445, 86 N.E. 1018, 1020. We find no reason
to accord a different meaning here.” 
Same-sex
married males and surrogacy
            Another issue that
arises is what happens if two (2) men decide to have children by artificial
insemination using surrogacy.  Say an egg
is fertilized by invitro fertilization and implanted into a surrogate. You
should first know that surrogacy agreements in Indiana are not enforceable
which can create other issues.  See
I.C. 31-20-1-1.  The birth mother is presumed to be the legal mother
even if her eggs were not used.  The
surrogate would then execute a birth certificate naming the husband (not her
husband) whose sperm was used to fertilize the egg as the father for the child.  Then the other husband would adopt the child
and the surrogate would give consent to the adoption.  A case that can give guidance in such a
situation is
In re Paternity
of Infant T, 991 N.E.2d 596
(Ind. App., 2013).  In that case a husband and wife used his
sperm and an anonymously-donated egg and had the fertilized egg implanted in a
married surrogate by artificial insemination.
After the birth they attempted to file an agreed judgment to have the
sperm donor and his wife declared the parents by filing a petition to
disestablish maternity and establish paternity by an agreed petition.  The trial court denied the petition because it
said it had no authority to disestablish maternity and that since the surrogate
was married her husband is the father.
On appeal, the Court of Appeals held that the court erred in denying the
petition for paternity as an affidavit was sufficient to overcome the
presumption that the surrogate’s husband was the father.  The Court of Appeals upheld the denying of the
petition to disestablish maternity.  The
court in dicta said that an affidavit is not sufficient to overcome the
presumption that the woman who bore the child is the mother but opined that if
the issue was before it the court might accept DNA evidence that showed that
the egg donor and not the birth mother is the mother of the child.   If you read the dissent by then Justice Rush in
the petition for transfer, you would see that neither the surrogate nor the
sperm donor’s wife were the source of the egg. In this instance the wife would
have to adopt the child.
Conclusion
            The State of
the law is evolving and the devastating results to the family require that you
make sure you use an attorney who has an understanding of the consequences and you
are fully informed.  This includes the
birth mother, the sperm donor if known, and non-birth parent.   In this article I have focused upon the lesbian
couples as that is the situation that presents the greater issues.  Of course, 2 men cannot have a child by
artificial insemination, but they face their own set of legal issues, as
referenced above.
Prepared by Richard A. Mann  of Mann Law, P.C. Attorneys at Law, www.rmannlawoffice.com