In re the Paternity & Maternity of Infant T.

RUSH, J.,

dissenting from the denial of transfer.

I respectfully dissent from the denial of transfer. The relief the petitioner seeks would result in the court enforcing what amounts to a surrogacy agreement. Here the parties agreed that a surrogate will earry to term an anonymously-donated egg fertilized in vitro and will effectively "[wlaive parental rights [and] duties to [the] child" upon birth Ind.Code § 31-20-1-1(6) (2008). The General Assembly has stated that such agreements are void and unenforceable. Id.; I.C. § 31-20-1-2 (2008). Though current parentage legislation does not contemplate assisted reproductive technologies, it is clear about not recognizing surrogacy agreements-and the Court of Appeals need not have made the issue more complicated than that.

Facts and Procedural History |

In this case, a surrogate mother agreed to carry to term an embryo conceived from the sperm of the biological father and the egg of an unknown donor. Before the birth, however, the biological father, along with the surrogate and her husband, petitioned to establish the biological father's paternity and "disestablish" the surrogate's maternity. The trial court denied both requests, ruling that a father could not establish his paternity pre-birth and that it had no‘authority to disestablish maternity.

On interlocutory appeal, the Court of Appeals reversed the trial court on the paternity issue, but agreed that a birth mother could not directly "disestablish" maternity. In re Paternity & Maternity of Infant T., 991 N.E.2d 596, 601 (Ind.Ct.App.2013). In doing so, the Court of Appeals considered the "paternity statutes as a template," and found that "[i]t would not be in the best interests 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." Id. at 600.

Analysis

The Court of Appeals reached the correct result, but made the question unnecessarily complicated. There would be much to commend the Court of Appeals' thoughtful analysis if there were no controlling law on this matter. But the General Assembly has clearly directed that no Indiana court may enforce a surrogacy agreement "that requires a surrogate to ... [wlaive parental rights or duties to a child," or "[tlerminate care, custody, or control of a child." IC. § 31-20-1-1(6)-(7). This is what the petitioner seeks to do here. Such agreements are "void" as a matter of public policy. I.C. § 31-20-1-2. And with the paternity statutes providing no explicit assistance in this matter, the General Assembly's clear disapproval of surrogacy agreements should foreclose any equitable experimentation in the courts and, thus, leave the birth mother as the legal mother unless and until another parent adopts the child.

Complex innovations like assisted reproduction are best addressed by legislatures-which can enact comprehensive, cohesive regulations, unlike courts' piecemeal decisions made through particular cases. Indeed, many jurisdictions now regulate alternative means of reproduction, eg., 750 Ill. Comp. Stat, Ann. 47 (West 2009); Tex. Fam.Code Ann. §§ 160.754-.757 (West 2008), and we have recognized the wisdom of such "formalities and protections" that safeguard not only the prospective parents but also the children that are created. See Straub v. B.M.T. by Todd, 645 N.E.2d 597, 601 (Ind.1994); cf. In re Adoption of Infants H., 904 N.E.2d 203, 207-08 (Ind.2009) (holding the prospective adoptive father of surrogate children did not comply with the Interstate Compact on the Placement of Children). But this particular case makes it unnecessary to wade into those broader questions.

Conclusion

I would therefore grant transfer and decide this case on the narrow basis of Indiana Code section 31-20-1-1, and leave it to the General Assembly to consider broader legislation to guide and protect future children and families through the still-uncharted waters of assisted reproductive technologies.