Caitlyn Fields*
* J.D. Candidate, 2025, Indiana University Robert H. McKinney School of Law; B.A. 2022 Hope College – Holland, Michigan. I would like to thank Dr. Jennifer Drobac for her invaluable comments, conversation, and guidance throughout the note-writing process. I am also grateful for my peers on and the editors of the Indiana Law Review.
Introduction
In 2011, a Connecticut surrogate entered into a gestational surrogacy agreement with a married couple (intended parents) who could not have children naturally due to fertility problems. [1] In exchange for $22,000, the surrogate promised to undergo an embryo transfer procedure and carry the intended parents’ child to term.[2] At the twenty-one week anatomy scan, doctors discovered the fetus had complex defects including cleft lip and palate, a brain cyst, and a serious heart abnormality resulting in “a 25% chance of having a ‘normal life.’”[3] The intended parents consulted with a genetic counselor and a maternal fetal medicine specialist before deciding to terminate the pregnancy to “minimize the risk of pain and suffering for their baby.” [4] The surrogate refused due to her personal moral opposition to abortion.[5]
In response, the intended parents threatened to sue for breach of contract. [6] Both parties signed the surrogacy agreement, which included a clause requiring “abortion in a case of severe fetus abnormality.”[7] When the surrogate still refused to have an abortion, the intended parents decided to exercise legal custody over the baby and then surrender the baby to the state immediately upon birth. [8]
In the parties’ home state of Connecticut, the law declares that genetic parents are the child’s legal parents, so the surrogate could not contest custody in state court. [9] However, surrogacy and legal parentage laws vary greatly from state to state.[10] The surrogate decided to move from Connecticut to Michigan.[11] At the time, Michigan law criminalized compensated surrogacy and prohibited Michigan courts from enforcing surrogacy agreements within the state.[12]Therefore, Michigan named the surrogate as the child’s legal parent, even though the surrogate had no genetic relation to the child. [13] The surrogate gave birth to the child in Michigan and became the child’s legal mother.[14] Despite the intended parents’ attempt to file for paternal rights in Connecticut, Michigan would not recognize them as the child’s legal parents.[15]
Surrogacy is legally complex and involves many practical, moral, and emotional considerations. As a result, states seek to regulate the practice of surrogacy.[16] Family law is state dependent, so a national regulatory framework for surrogacy does not exist.[17] Nearly all fifty states take a different approach to the practice of surrogacy.[18] These approaches range from a total lack of regulation to a complete ban on any type of surrogacy.[19] Indiana and Arizona are the only two states that refuse to enforce any type of surrogacy agreement on public policy grounds.[20]
In 1997, the Indiana General Assembly deemed all surrogacy contracts unenforceable due to public policy.[21]Specifically, the Indiana Code voids any contract that requires someone to become pregnant or waive parental rights.[22]Many attempts have been made to repeal this Indiana statute.[23] Repeal efforts are due in part to the evolution of reproductive technology over the last forty years.[24] To accommodate the advancements of modern medicine, some Indiana courts have granted parental rights to intended parents of children born of surrogacy.[25] Such decisions conflict with Indiana’s statutory ban on surrogacy agreements.[26]
This Note proposes that Indiana must repeal its outdated statutory ban on gestational surrogacy agreements and enact legislation that provides explicit guidelines for all parties involved in a surrogacy agreement. This Note argues that Indiana’s invalidation of surrogacy contracts—by the General Assembly deeming these agreements void—does not prevent parties from forming surrogacy contracts. Rather, Indiana’s outdated surrogacy ban creates conflicting legal precedents, confusion, and forum shopping.
Part I discusses the practice of surrogacy in the United States and the evolution of assisted reproductive technology. Part II analyzes the Indiana surrogacy ban by examining the current statute, recent Indiana case law, and proposed legislation. Part III emphasizes why Indiana’s current approach to surrogacy agreements is outdated. Indiana’s approach does not provide adequate protections to Indiana children, surrogates, or intended parents, and it fails to adapt to evolving public policy. Part IV argues that the Indiana General Assembly should repeal the outdated Indiana Code and recognize gestational surrogacy agreements as valid contracts. Indiana’s Gestational Surrogacy Act should include specific requirements: including (1) equal bargaining power, (2) informed consent, and (3) explicit remedies focused on preserving bodily autonomy. Finally, Part IV also addresses and responds to counterarguments and demonstrates why a modernized surrogacy law minimizes the potential risks of harm.
I. Surrogacy in the United States
A. Surrogacy Explained
There are two different types of surrogacy.[27] A surrogate is an individual who carries a child for the child’s intended parent(s).[28] Gestational surrogacy refers to the practice in which the surrogate hosts one or multiple genetically unrelated embryo(s).[29] In this process, a doctor implants the intended parent’s embryo(s), created from their chosen sperm and egg into the surrogate’s uterus.[30] If the parties utilize modern reproductive technology to create a pregnancy, the gametes (i.e., sperm(s) and/or egg(s)) may come exclusively from donors.[31] Therefore, the resulting child can be biologically related to none, one, or both of the intended parents.[32] Thus, in some instances, the intended parents can be genetic “strangers” to their child.[33] The second type of surrogacy is traditional surrogacy.[34] Traditional surrogacy occurs when a doctor artificially inseminates the surrogate with the intended father’s sperm or donor sperm.[35] Therefore, the resulting child is genetically related to the surrogate and either the intended father or paternal donor.[36]
Surrogacy becomes more complicated when one considers the issue of compensation. Some surrogacy agreements are uncompensated (“altruistic”), and the money exchanged reimburses the surrogate for pregnancy-related expenses. [37]In compensated (“commercial”) surrogacy agreements, the surrogate receives an agreed upon fee in addition to reimbursement for expenses. [38] Although there are ethical concerns related to compensated surrogacy, both the American Society of Reproductive Medicine and the American College of Obstetricians and Gynecologists find that compensated gestational surrogacy is “ethically justifiable” due to the “time, effort, and risks taken by a [surrogate].”[39]
The practice of surrogacy involves several other ethical and legal concerns.[40] Individuals who oppose surrogacy argue that surrogacy constitutes “exploitation, commodification, and/or coercion” because it monetizes human reproduction.[41] Those in favor of surrogacy believe it provides a potential solution for couples unable to have children without medical assistance.[42] Surrogacy is deeply intertwined with reproductive rights concerns, such as “bodily autonomy, vulnerability, inequality and rights.”[43]
B. Surrogacy and the Evolution of Assisted Reproductive Technology
Advancements in reproductive health care in the last fifty years have completely changed surrogacy and its legal implications.[44] In vitro fertilization (“IVF”) is a well-known and commonly used form of assisted reproductive technology.[45] During IVF, a doctor extracts a patient’s eggs and then artificially fertilizes them in a laboratory, before implanting the resulting embryos into the patient’s uterus.[46] The first live birth from in vitro fertilization occurred forty-five years ago.[47] In 2021, IVF or other assisted reproductive technology (“ART”) led to the conception of 2.3% of infants (nearly 97,000 infants) born in the United States.[48] Medical professionals expect the use of ART to increase in the near future, as nearly nineteen percent of American women struggle with infertility.[49]
The first gestational surrogate pregnancy in the United States occurred in 1985.[50] In the last fourteen years, over 18,000 children were born via surrogacy.[51] Surrogacy is safer and more effective than ever due to continuous developments in reproductive medicine.[52] For couples struggling with infertility, LGBTQ+ couples, and single individuals, gestational surrogacy is proving to be a safe, viable, and appealing fertility treatment option. [53] However, the accessibility of surrogacy and other forms of assisted-reproductive technology depends on state law.[54]
Furthermore, the economic impact of surrogacy agreements is substantial.[55] In 2022, the commercial surrogacy industry generated almost fourteen billion dollars globally.[56] Surrogacy experts project that number will increase ten-fold by 2032.[57] As of 2022, the United States was the world’s largest surrogacy market.[58] States that enforce surrogacy contracts enjoy the benefits of this growing sector of the economy, whereas states that refuse to recognize surrogacy agreements, such as Indiana, miss out on the associated economic benefits.[59]
II. Analysis of Indiana’s Current Law on Surrogacy Agreements
A. Surrogacy Agreements and Indiana Code
All forms of surrogacy agreements—both traditional and gestational, regardless of compensation—are void in Indiana due to public policy concerns.[60] However, the Indiana Code does not define these public policy concerns.[61]Indiana’s statute defines a surrogacy agreement as a contract that “induc[es] the surrogate to relinquish, care, custody, and control over the child at birth” to intended parents.[62] Thus, Indiana recognizes the legal parentage rights of intended parents after the birth of the child, not during the surrogate’s pregnancy.[63] To establish legal parentage in Indiana after the child’s birth, one or more of the parents must be biologically related to the child.[64]
The General Assembly passed Indiana Code § 31-20-1 in July of 1997, which specifies that any surrogacy agreement formed in Indiana after March of 1988 is void.[65] Indiana’s statute remains unchanged,[66] even though reproductive technology and healthcare look vastly different now as compared to forty years ago.[67] The General Assembly explains that public policy prohibits enforcement of a surrogacy agreement that requires a surrogate to (1) use her egg in the conception of a pregnancy, (2) become pregnant, (3) have an abortion, (4) have medical treatment, (5) follow the demands of another person, or (6) waive custody or parental rights over a child. [68] Thus, Indiana bans all forms of surrogacy.[69]
The General Assembly was not naïve to the possibility that legal disputes would arise concerning the legal parentage of a child born from surrogacy.[70] To address this inevitable situation, the legislature instructs Indiana’s courts to disregard the existence of a surrogacy agreement when making “a decision concerning the best interests of a child.”[71]Therefore, in a legal parentage case, a court cannot consider an existing surrogacy agreement in its custody determination. However, a court may consider a surrogacy agreement in a legal parentage action if “a party proves that the surrogate agreement was entered into through duress, fraud, or misrepresentation.”[72] As predicted, Indiana courts have heard many cases involving legal parentage disputes arising from surrogacy agreements.[73] According to the Indiana Supreme Court, “the General Assembly’s clear disapproval of surrogacy agreements should foreclose any equitable experimentation in the courts.”[74]
B. Indiana Case Law
Indiana courts have held that “[i]t is generally not difficult to determine the biological mother of a child.”[75]Determining maternity is defined as “establishing the identity of a person’s biological mother.”[76] The Indiana Court of Appeals has stated it has “always been able to tell with absolute certainty who is the mother of a child.”[77] Thus, Indiana courts hold that “a mother’s legal obligations to her child arise when she gives birth.”[78]
Likewise, Indiana courts presume that a surrogate is the child’s biological mother because the surrogate gave birth to the child.[79] The Indiana Supreme Court “leave[s] the birth mother [i.e., the surrogate] as the legal mother unless and until another parent adopts the child.”[80] Essentially, the courts will establish the intended parents’ legal parentage only in an adoption proceeding.[81] This method of determining legal parentage is time-consuming, costly, and burdensome for surrogates and intended parents, and it presents a risk that the court refuses to grant legal parentage to the child’s rightful parents.
Indiana courts also require intended parents to establish maternity.[82] To do this, an intended mother must present clear and convincing evidence that she is the infant’s biological mother.[83] The use of affidavits or stipulations does not provide enough evidence to rebut the presumption of maternity.[84] Rather, the intended mother must establish maternity via genetic testing during an adoption proceeding.[85] This presents an issue if the intended mother does not provide the egg used in creating the pregnancy, as the child would be genetically unrelated to the intended mother.[86]
Recently, the Indiana Court of Appeals created new surrogacy case law.[87] In the case In re Paternity of A.J., a married couple contracted with a surrogate in Indiana.[88] After the child’s birth, the couple filed for divorce, and a custody suit ensued. [89] The child’s biological father filed a paternity action to gain full custody.[90] The trial court awarded custody to the intended mother, even though she was not the child’s biological or adoptive mother.[91] The father appealed, arguing that he should automatically have the legal presumption of custody because he was the child’s only biological parent.[92]
The court determined that while the intended mother was “not the biological or legal mother of the [child], the child [was] nevertheless a child of this marriage.”[93] The court reasoned that the intended mother’s “status as the [c]hild’s ‘mother’” was independent of her legal or biological relation to the child.[94] This holding directly conflicts with Indiana’s presumption of maternity.[95] This opinion also serves as an acknowledgment of an intended parent’s custodial rights to their child born via surrogacy.[96]
Indiana courts’ call for updated legislation have gone unanswered, as complex legal parentage issues continue to arise.[97] In 2013, Indiana Supreme Court Chief Justice Rush wrote a dissent urging “the General Assembly to consider broader legislation to guide and protect future children and families through the still-uncharted waters of assisted reproductive technologies.”[98] The Indiana Court of Appeals echoed similar concerns when it explained that Indiana courts “are confronted with reproductive technologies not contemplated when our Legislature initially sought to provide for the establishment of legal parentage for biological parentage.”[99]
C. Proposed Legislation
Last year, a proposed bill provided hope for updated surrogacy legislation. [100] Indiana State Representative Robert Heaton submitted House Bill 1267, the Gestational Surrogacy Act (the “Act”), for consideration in the 2023 Session.[101] This bill would repeal “current Indiana law regarding surrogacy agreements” and legalize gestational surrogacy contracts.[102] At the end of the 2023 Legislative Session, the Act was marked inactive.[103] Although Representative Heaton referred the Act to the Judiciary Committee, it never reached the voting floor.[104] As of August 2024, a new Gestational Surrogacy Act has not been proposed in the 124th Indiana General Assembly.[105]
The express purpose of the Act is “to establish consistent standards and procedural safeguards for the protection of all parties” involved in surrogacy agreements. [106] Additionally, the Act will confirm “the legal status of children born as a result of these agreements” by amending current Indiana parentage law.[107] Specifically, this Act will ensure “sole custody of the child rests with the intended parent[s]” immediately following the birth of a child from a surrogacy agreement. [108] Thus, adoption proceedings will no longer be necessary to determine questions of custody and legal parentage, as the intended parents will automatically be the legal and legitimate “parent of the child for purposes of Indiana law.” [109]
Importantly, the Act also amends the Indiana Code to include definitions consistent with modern reproductive technology.[110] The Act implements certain requirements for surrogacy agreements to be enforceable.[111] For example, surrogates must be at least twenty-one years old, have previously given birth, undergo medical evaluation, and have health insurance as well as independent legal counsel.[112] The intended parents must also meet certain requirements including: being at least twenty-one years old, completing a mental health evaluation, and retaining independent legal counsel.[113]
Furthermore, the surrogacy agreement must be in writing, signed by all involved parties, and notarized.[114] In the agreement, the surrogate must agree to allow her obstetrician to discuss the details of the pregnancy with the intended parents.[115] The agreement must include numerous clauses, one requiring the surrogate to obtain medically necessary care from her obstetrician and another requiring the surrogate to “surrender custody of the child to the intended parent immediately upon birth of the child.”[116]
The Act permits compensated surrogacy, but the intended parents or their legal counsel must place the money in escrow before the surrogate undergoes any “medical procedure in the furtherance of the gestational surrogacy.”[117] The Act also addresses some remedies available after a breach of the surrogacy agreement.[118] If the intended parents breach the terms of the surrogacy agreement, they are required to fulfill “the support obligations,” including payment of medical bills and any surrogacy associated costs.[119] The court will then take on the task of “determin[ing] the respective rights and obligations of the parties.”[120] Unlike traditional contract law, the remedy of specific performance is not available for breach of a surrogacy agreement.[121] Thus, in the event of a breach by the intended parents, the surrogate cannot be forced to (1) carry the pregnancy to term or (2) terminate her parental rights.[122]
Despite the importance of the Gestational Surrogacy Act, it failed to make it beyond the judiciary committee in 2023, which was not the first time the Act failed to become law.[123] Representative Sean Eberhart proposed an earlier version of the bill in 2019.[124] This version of the Act passed a vote in the House of Representatives but not the Senate.[125] In 2022, Rep. Eberhart introduced a similar bill, which contained all the same material provisions as Senate Bill 1267.[126] Rep. Eberhart referred this bill to the judiciary committee, but it never reached a vote.[127] Rep. Eberhart remained an adamant supporter of the proposed Gestational Surrogacy Act until his retirement at the end of 2022, explaining that the Act remains necessary because parties to a surrogacy agreement in Indiana have neither legal recourse nor legal consequence. [128]
III. Problems Posed by Current Indiana Law
A. Indiana’s Evolving Public Policy and Problems Arising from Indiana’s Outdated Surrogacy Law
As reproductive technology continues to evolve, courts can no longer determine maternity with “absolute certainty” without using a DNA test.[129] These tests are accessible, highly accurate, minimally invasive, and relatively inexpensive, so Indiana courts are eager to implement them to rebut the presumption of maternity.[130] Indiana’s outdated surrogacy ban does not contemplate that the person giving birth to the child may not be the child’s biological mother.[131]In fact, current Indiana law blatantly ignores advancement in assisted reproductive technology. The automatic assumption of maternity does not align with modern science and medicine.[132]
Indiana declares that determining the biological parentage of children “is the express public policy of this State.”[133] However, strict adherence to Indiana’s surrogacy statute would deny a child born via surrogacy the same rights afforded to other children.[134] Indiana also deprives children born via surrogacy the same rights enjoyed by IVF children born in Indiana and other states.[135] A child born via surrogacy in Indiana is not able “to be legally linked to those with whom he or she shares DNA.”[136] Additionally, Indiana surrogates do not receive the same rights given to putative fathers (a man who is alleged or claims to be the child’s biological father), because a surrogate cannot have their name removed from a birth certificate or avoid the legal responsibilities associated with the presumption of maternity.[137]
Indiana deprives surrogates and the children born from surrogacy agreements of the rights enjoyed by other Indiana citizens, despite a clear history of valuing parental contributions transcending the bounds of biology and birth.[138] In a landmark Indiana legal parentage case, a man received custody of a child after the death of the child’s mother, even though the man was not the child’s biological father.[139] The Indiana Court of Appeals stated:
While we have no doubt a child’s knowledge and understanding of her biological heritage can be important for emotional and medical history reasons, we decline to hold that biology is more important than a child’s relationship with a man who has been, as the trial court so aptly put it, ‘[the child’s] father in terms that matter most.’[140]
The court’s decision suggests that Indiana courts consider more than genetics when determining legal parentage.[141]
While many states recently began enforcing surrogacy agreements, Indiana’s General Assembly remains completely opposed to gestational surrogacy.[142] Thus, Hoosier surrogates, intended parents, and their children face legal hardships in Indiana that they would not face in other states.[143] Indiana’s adherence to this outdated surrogacy law disadvantages Indiana citizens because it forces them to look out-of-state when contracting for surrogacy.[144] As a result, these individuals face immense burdens, including increased expenses, confusing choice-of-law clauses, increased chances of litigation, custody disputes, and the inability to utilize established healthcare providers.[145]
Furthermore, Indiana’s outdated surrogacy law also deprives both surrogates and intended parents of the freedom to contract. For over a century, the Indiana courts have protected Indiana citizens’ freedom to contract.[146] Indiana’s Supreme Court explained that “the privilege of contract is both a liberty and a property right and is protected by the constitution of both the state and nation.”[147] The court elaborated on the importance of the freedom to contract and stated:
[B]ecause we value the freedom to contract so highly, we will not find that a contract contravenes a statute unless the language of the implicated statute is clear and unambiguous that the legislature intended that the courts not be available for either party to enforce a bargain made in violation thereof.[148]
Because Indiana’s surrogacy statute expressly voids surrogacy agreements, only legislation repealing the current Indiana statute can return the freedom to contract to surrogates and intended parents.[149]
From an economic perspective, Indiana’s surrogacy ban causes the state to miss out on a booming surrogacy market.[150] Despite being a self-declared pro-business state, [151] Indiana deprives prospective Indiana surrogates from hundreds of thousands of dollars of potential income by voiding surrogacy contracts.[152] As intended parents look out-of-state for surrogates, they take with them up to $200,000 per successful surrogacy.[153] Rather than potentially benefiting Indiana’s citizens and the states’ economy, the economic benefits of surrogacy go to other surrogacy-friendly states.[154]
B. The Connecticut Surrogacy Dilemma
Under current Indiana surrogacy law, Indiana intended parents will face the same problems as the Connecticut intended parents discussed supra.[155] Namely, intended parents will be left with little to no legal recourse should the surrogate they contract with flee the state or remain in Indiana but refuse to uphold their side of the surrogate agreement.[156] If the surrogate gives birth to the child in Indiana, and the intended mother cannot establish genetic maternity over the resulting child, the surrogate will have as many legal rights over the child as the intended father who establishes paternity.[157] To prevent what happened to the Connecticut intended parents, Indiana needs to ensure that intended parents are given legal parentage rights over the child, throughout the entire pregnancy, from the moment of conception.
Indiana is not the first state tasked with ensuring intended parents receive their legal parentage rights. In 1993, California’s Supreme Court decided a case in which a gestational surrogate claimed maternity over a child created using the intended father’s sperm and the intended mother’s egg.[158] The court found that both the surrogate and intended mother presented different, valid forms of proof of maternity, so it looked to the parties’ intentions found in the surrogacy agreement.[159] The surrogacy agreement led the court to grant paternal rights to the intended parents because “but for their acted-on intention [to create a child through IVF], the child would not exist.”[160] Therefore, under California law, “she who intended to bring about the birth of a child that she intended to raise as her own – is the natural mother.”[161]
Under Indiana’s outdated surrogacy law, the surrogate (in both the California case and the Connecticut story) would receive legal rights over a child they bear no genetic relation to. At the same time, the intended parents would lose their legal parentage rights over their child. Indiana should implement California’s “but for” test in legal parentage determination suits.[162] If a legal parentage dispute arises as the result of surrogacy, Indiana courts must consider the parties’ surrogacy agreement. By giving deference to the parties’ expressed intent in the surrogacy agreement, Indiana can recognize the intended parents’ parentage rights. This approach aligns with Indiana’s express public policy of acting in the best interest of the child by “correctly identifying parents and their offspring.”[163] However, to truly act in the best interest of the child, “a rule recognizing the intend[ed] parents as the child’s legal, natural parents should best promote certainty and stability for the child.”[164]
With the regulations proposed by a modified version of Indiana’s Gestational Surrogacy Act, surrogacy agreements can promote family relationships, economic growth, and bodily autonomy — all important parts of Indiana’s public policy.[165] Therefore, it is time for the Indiana General Assembly to reexamine the public policy considerations behind the outdated surrogacy ban.
IV. Proposed Changes to Indiana’s Outdated Surrogacy Law
A. Overall Proposal
To ensure the protection of surrogates, intended parents, and their children, Indiana should repeal the current statute voiding surrogacy agreements. In its place, the Indiana General Assembly should adopt a modified version of the proposed Gestational Surrogacy Act.[166] Although critics may argue that introducing legislation that validates gestational surrogacy agreements will increase the amount of litigation in Indiana, other surrogacy-friendly states prove otherwise.[167] Surrogacy law experts estimate that “less than one-tenth of a one percent of [surrogacy] agreements [result] in court battles.”[168] It is time for Indiana to enact comprehensive, updated legislation that upholds gestational surrogacy agreements with specific requirements for (1) equal bargaining power between surrogates and intended parents, (2) informed consent, and (3) mutually agreed upon remedies for breach of contract that consider the bodily autonomy of the surrogate.
B. Equal Bargaining Power
A major concern of bioethicists is the possible inducement of low-income women into surrogacy agreements due to financial need.[169] Should Indiana decide to enforce gestational surrogacy agreements, the General Assembly must take decisive action to ensure both parties to a gestational surrogacy agreement have equal bargaining power. To ensure equal bargaining power in these agreements, Indiana: (1) must require separate legal representation for contracting parties, and (2) should encourage the use of a surrogacy agency. These additions to Indiana’s proposed Gestational Surrogacy Act can promote a truly mutual agreement between parties. Mutual agreement between the parties is imperative, as true mutuality “represent[s] the legitimate exercise of autonomy necessary to validate these often highly intrusive contracts.”[170]
Indiana must ensure that both parties to a surrogacy agreement obtain independent legal counsel. Indiana’s proposed Gestational Surrogacy Act includes some language to this effect as it requires “[t]he gestational surrogate and the intended parents [to be] represented by separate and independent legal counsel in all matters concerning the gestational surrogacy and the gestational surrogacy agreement.”[171] This requirement aligns with Indiana’s public policy in that “the lack of assistance from independent legal counsel may be [a] factor to consider in deciding” if a contract is unconscionable.[172]
However, a conflict of interest may arise when determining which party should pay for the surrogate’s legal fees. Legal fees for surrogacy agreements can range from $5,000 to $15,000 depending on location, the complexity of the agreement, and the lawyer.[173] A large wealth disparity between surrogates and intended parents is common, so Indiana must decide which party bears responsibility for the payment of respective legal fees.[174] Indiana’s proposed Gestational Surrogacy Act is notably silent on this issue. The omission of a legal fees provision demonstrates a shortcoming of Indiana’s Gestational Surrogacy Act.
Indiana surrogates and intended parents would benefit if Indiana adopted New York’s approach.[175] Under New York’s Gestational Surrogates’ Bill of Rights, surrogates are entitled to independent legal counsel of their choice that represents solely the surrogate and her interests.[176] In New York, intended parents must pay these legal expenses upfront.[177] However, this approach may discourage potential intended parents from contracting for surrogacy due to the associated expenses.
Indiana’s General Assembly could instead require the surrogate to pay for her own legal fees, followed by reimbursement at the completion of the surrogacy agreement. This creates a substantial upfront cost for the surrogate, which may cause the surrogate to opt for more affordable, but less qualified legal counsel. A surrogate who pays for her own legal counsel could spend up to half of her overall compensation from the surrogacy on legal fees.[178] When some of the monetary burden shifts to the surrogate rather than the intended parents, equal bargaining power is at risk.
Therefore, the most advantageous approach would be to require intended parents to cover all the legal expenses associated with a surrogacy agreement. This approach is the most equitable because it considers the socioeconomic status of both parties. Additionally, this approach equitably distributes the burdens of surrogacy: surrogates bear the physical burdens of surrogacy, while intended parents bear the financial burdens. Therefore, Indiana’s Gestational Surrogacy Act should require intended parents to pay all associated legal fees prior to the surrogacy beginning.
The use of a surrogacy agency is another important protection Indiana can provide those who contract for surrogacy. Surrogacy agencies serve as an intermediary between the surrogate and intended parents.[179] These agencies can match potential surrogates with intended parents based on the compatibility of both parties’ moral and ethical beliefs.[180] Compatibility tests can prevent numerous issues, such as the mismatched beliefs regarding termination, reduction, and medical treatment.[181] These agencies also help manage medical visits and bills, establish a payment schedule, and provide guidance to both parties throughout the surrogacy.[182]
Despite the numerous benefits of surrogacy agencies, no states that permit gestational surrogacy require the use of surrogacy agencies.[183] As a result, surrogacy agencies are a luxury few can afford.[184] Surrogacy agency fees can range from $15,000 to $30,000, adding to the already extensive surrogacy-related costs.[185] The surrogacy agencies often act as an advocate for surrogates, which means that when a surrogacy proceeds without an agency, the surrogate loses a powerful advocate.[186] Therefore, Indiana could consider subsidizing the cost of surrogacy agencies if the state enacts the Gestational Surrogacy Act.
Further, Indiana will need to consider how to regulate these surrogacy agencies. Most states have little to no regulations that surrogacy agencies must abide by.[187] One viable option would be the imposition of licensure requirements for surrogacy.[188] New York is the only state to codify a licensure and a reporting requirement for surrogacy agencies.[189] To obtain licensure in New York, a surrogacy agency must have a detailed conflict of interest policy, professional liability insurance, an informed consent form to be signed by both the surrogate and the intended parents, and a “Gestational Surrogates’ Bill of Rights.”[190] These requirements ensure that surrogacy agencies balance the rights of both the surrogate and the intended parents, promoting equal bargaining power between the parties.
C. Informed Consent
Individuals in opposition to surrogacy agreements argue that surrogacy amounts to “womb commodification” which can allow “the rich to take advantage of the willingness of poor [surrogates].”[191] Thus, the proposed Gestational Surrogacy Act must include an informed consent clause to address the risk of duress, fraud, and misrepresentation. The Act currently includes provisions requiring the surrogate to agree “to undergo all medical exams, treatments, and fetal monitoring procedures recommended by a physician. . . for the success of the pregnancy.”[192] There are numerous risks associated with pregnancy,[193] so Indiana’s proposed Gestational Surrogacy Act must be amended to include an informed consent requirement.
To define informed consent in the surrogacy context, the General Assembly should look to the definition of informed consent from Indiana’s Medical Malpractice statute.[194] There is a rebuttable presumption that a patient’s written consent is informed consent, if the consent is:
(1) signed by the patient or the patient’s authorized representative; (2) witnessed by an individual at least eighteen (18) years of age; and (3) explained, orally or in the written consent, to the patient or the patient’s authorized representative before a treatment, procedure, examination, or test is undertaken.[195]
The legislature approved this definition for the Medical Malpractice statute, and it can draft this definition into Indiana’s Gestational Surrogacy Act. In addition, because implied consent is a rebuttable presumption, a surrogate can present evidence that could disprove the presumption if a dispute arises.[196]
D. Remedies for Breach of Contract – Termination of Pregnancy and Surrogate Autonomy
Contracting parties may not ponder the worst-case scenario when drafting a surrogacy agreement, so Indiana’s Gestational Surrogacy Act must enumerate requirements for a remedies provision to fill in the gaps of negotiated surrogacy agreements. Currently, the proposed bill defines noncompliance with the surrogacy agreement as one of the parties “materially breach[ing] a provision of the gestational surrogacy agreement.” [197] In the event of noncompliance, the court is left to “determine the respective rights and obligations of the parties.”[198] Although the intended parents and gestational surrogate are “entitled to all remedies available at law or equity,” courts cannot order specific performance requiring the surrogate to “(1) be impregnated; (2) terminate a pregnancy; or (3) carry a pregnancy to term.”[199] This language is too broad to protect both the bodily autonomy of surrogates and the interests of the intended parents. As discussed in the Connecticut surrogacy story, contracting parties often include provisions in their surrogacy agreements that disregard legislative requirements (e.g., agreements requiring abortion in the case of severe fetal abnormality).[200]
In the event of breach, Indiana must support the intended parents in their fight for rightful legal custody. Under traditional contract law, the contract determines specifics such as dates for services, sales, and execution of the contract.[201] The surrogacy contract could specify that a surrogate accepts implantation of two gametes proffered by the intended parents, and thus, the surrogate retains no legal rights over the child created from those gametes.[202] In the agreement, the surrogate will have to acknowledge that these gametes are not her property. Therefore, Indiana may provide a cause of action to intended parents for conversion of gametes that will develop into a child.
Furthermore, if a surrogate were to flee Indiana to a state that bans surrogacy, the intended parents may turn to the state’s criminal justice system for legal recourse.[203] Under the Uniform Criminal Extradition Act, adopted by forty-seven states,[204] Indiana can demand the extradition of the surrogate back to Indiana,[205] where the courts will uphold the surrogacy agreement and recognize rights of the intended parents. Furthermore, any state that the surrogate flees to would have to give “full faith and credit” to Indiana law.[206] Indiana also has a fundamental public policy of regulating contracts that are executed and formed in Indiana.[207] Therefore, the surrogacy agreement would still be enforced even in a different state, and parentage rights would be given to the intended parents, not the surrogate.
The Gestational Surrogacy Act is further complicated by the overturning of Roe v. Wade and the codification of Indiana’s abortion ban.[208] Without the protections of Roe v. Wade, there is no longer a “substantive due process fundamental right to an abortion.”[209] This limit on bodily autonomy impacts the practice of surrogacy.[210] In the case of severe fetal anomaly, like that seen in the Connecticut surrogacy story,[211] both Hoosier surrogates and intended parents would lack the ability to decide to terminate the pregnancy.[212] If the intended parents decide they no longer want the surrogacy to continue (like the Connecticut intended parents)[213] and the surrogate disagreed, the courts will no longer enforce the surrogacy agreement. Therefore, the surrogate would face the burden of legal expenses, medical bills, and the presumption of maternity on her own. Because of these conflicting state laws and interests regarding abortion and bodily autonomy, careful legislative drafting is imperative.
In New York, the Surrogates’ Bill of Rights provides that the surrogate “has the right to make all health and welfare decisions regarding them-self and their pregnancy, including but not limited to [. . .] whether to terminate or continue the pregnancy.”[214] If a surrogate decides to terminate the pregnancy without cause, which is rare, the intended parents can recover any payments made to the surrogate.[215] However, this approach is not likely to find success in Indiana due to the state’s near total ban on abortion.[216] The Indiana General Assembly is unlikely to adopt a form of “surrogacy exceptionalism” which allows surrogates access to abortion rights not afforded to other Hoosiers. However, the parties may be able to utilize their freedom to contract and create a contract that allows for transportation to a neighboring state where abortion is legal for specialized pregnancy or termination care. Therefore, the contract could provide that it is the responsibility of the intended parents to cover such travel expenses as required during the surrogate’s pregnancy. If Indiana restricts the ability to seek reproductive care out of state, conflicts of law scholars believe residents of where abortion is illegal should retain the right to obtain pregnancy or termination care out of state under the Federal Constitution.[217]
It is practically impossible to draft a surrogacy agreement that contemplates every possible situation that may arise during a pregnancy. “The law doesn’t anticipate these kinds of Sophie’s Choice-type questions that people have to make once they’re creating babies in petri dishes.”[218] Essentially, due to the overlap between surrogacy and reproductive rights, surrogacy agreements present difficult and divisive issues.[219] Therefore, Indiana’s courts must be prepared to handle these complicated issues.
The proposed Gestational Surrogacy Act provides that in the event of a material breach by any party to a surrogacy contract, “a court of competent jurisdiction shall determine the respective rights and obligations of the parties.”[220] Although complex issues of contract interpretation may create a larger caseload for Indiana courts, many legal scholars view courts as the best means for equitable enforcement of surrogacy contracts. [221] Courts can consider the factual intricacies of surrogacy agreements that legislatures cannot.[222] Courts can also determine the proper remedies if a dispute regarding the pregnancy arises. For example, if a surrogate chooses to continue a pregnancy despite a fetal anomaly, the intended parents can ask the court to establish their legal parentage before birth. Then, when the child is born, the surrogate will have no legal rights over the child, and the intended parents will have the decision-making power over the child.
Although no statute can contemplate every possible outcome of a deeply divisive reproductive issue, these proposed solutions ensure that a surrogate maintains their bodily autonomy while also providing potential remedies to both parties.
Conclusion
This Note argued that Indiana should replace its outdated statute banning gestational surrogacy agreements with legislation, like the proposed Gestational Surrogacy Act, which would provide explicit guidelines and remedies for all parties to a surrogacy agreement. Indiana’s current statute that voids all surrogacy agreements due to public policy concerns does not prohibit individuals from contracting for surrogacy in Indiana. Instead, Indiana’s statute leaves these contracting parties vulnerable, deprived of their freedom to contract with limited access to legal recourse.
In short, Chief Justice Rush described the solution to this complex issue best when she wrote, “complex innovations like assisted reproduction are best addressed by legislatures — which can enact comprehensive, cohesive regulations, unlike courts’ piecemeal decisions made through particular cases.”[223] Gestational surrogacy is a complex, evolving issue and will not simply disappear due to legislative inaction. Indiana’s statute voiding surrogacy agreements went into effect in 1997. In the past twenty-five years, the world has seen incredible advancements in reproductive technology. Indiana has an opportunity to bring the state into the 21st century, by repealing outdated surrogacy law. The Indiana Gestational Assembly must act and pass a Gestational Surrogacy Act to protect the rights of surrogates, intended parents, and children.
[1] Elizabeth Cohen, Surrogate Offered $10,000 to Abort Baby, CNN (Mar. 6, 2013), https://www.cnn.com/2013/03/04/health/surrogacy-kelley-legal-battle/index.html [https://perma.cc/7RBK-ZS3Q].
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] Id.
[9] Id.
[10] Surrogacy Laws by State, Legal Pro. Grp. (2023), https://connect.asrm.org/lpg/resources/surrogacy-by-state?ssopc=1 [https://perma.cc/H83E-QBA7].
[11] Cohen, supra note 1.
[12] Mich. Comp. Laws §§ 722.859, 855 (2014).
[13] Mich. Comp. Laws § 722.861 (1988); Cohen, supra note 1.
[14] Cohen, supra note 1.
[15] See Mich. Comp. Laws § 722.861 (1988) (stating that in a custody dispute arising from a surrogacy contract, the child shall remain with “the party having physical custody of the child [. . .] until the circuit court orders otherwise.”); See also Mich. Comp. Laws § 722.22(i) (2014) (defining “parent” as “the natural or adoptive parent of a child”).
[16] Surrogacy Laws by State, supra note 10.
[17] Seema Mohapatra, States of Confusion: Regulation of Surrogacy in the United States, in Commodification Of The Human Body: A Cannibal Market 1, 6 (J.D. Rainhorn & S. El Boudamoussi eds., 2015).
[18] Surrogacy Laws by State, supra note 10.
[19] See Mohapatra, supra note 17, at 5-7.
[20] Should Compensated Surrogacy be Permitted or Prohibited?, Cornell L. Fac. Publ’ns, Sept. 2017, at 13-14,http://scholarship.law.cornell.edu/facpub/1551 [hereinafter Cornell].
[21] Ind. Code § 31-20-1-1 (1997).
[22] Id.
[23] See S. 1267, 123rd IN Gen. Assembly (2023); S. 1104, 122nd IN Gen. Assembly (2022); S. 1369 119th IN Gen. Assembly (2019).
[24] See S. 1267, 123rd IN Gen. Assembly (2023).
[25] See In re Paternity of A.J., 146 N.E.3d 1075, 1082 (Ind. Ct. App. 2020).
[26] Compare Id. (holding the “[m]other should not be required to adopt the Child for her status as the Child’s ‘mother’ to be recognized”), with Ind. Code § 31-20-1-1 (1997) (stating it is against public policy for a surrogate to waive parental rights or terminate custody).
[27] Nayana Hitesh Patel et al., Insight into Different Aspects of Surrogacy Practices, 11 J. of Hum. Repro. Scis.212, 212 (2018).
[28] Id.
[29] Id.
[30] Id.
[31] Surrogacy, Yale Med., https://www.yalemedicine.org/conditions/gestational-surrogacy (last visited Feb. 2, 2024) [https://perma.cc/2LQM-732F].
[32] Id.
[33] Id.
[34] Patel et al., supra note 27.
[35] Id.
[36] Id.
[37] Cornell, supra note 20, at 6.
[38] Id.
[39] Pedro Brandão & Nicolás Garrido, Commercial Surrogacy: An Overview, 44 J. of Brazil Gynecology & Obstetrics 1141, 1144 (Dec. 2022) https://www.ncbi.nlm.nih.gov/pmc /articles/PMC9800153/.
[40] For an in-depth discussion of the ethical and legal concerns surrounding surrogacy and various arguments for and against the practice of surrogacy, see Anca Gheaus & Christine Straehle, Debating Surrogacy (Debating Ethics) (2024); Paula Gerber & Katie O’Byrne, Surrogacy, Law and Human Rights (1st ed. 2015); June Carbone & Christina O. Miller, Surrogacy Professionalism, 31 J. Am. Acad. Matrimonial L. 1 (2018); Paula Abrams, The Bad Mother: Stigma, Abortion and Surrogacy, 43 J.L. Med. & Ethics 179 (2015).
[41] Patel et al., supra note 27, at 215.
[42] Vivian Wang, Surrogacy Pregnancy Battle Pits Progressives Against Feminists, N.Y. Times (June 12, 2019), https://www.nytimes.com/2019/06/12/nyregion/surrogate-pregnancy-law-ny.html [https://perma.cc/L7QE-AXA8].
[43] Herjeet Marway, The Ethics of Surrogacy, Univ. of Birmingham News Archive (Sept. 27, 2018), https://www.birmingham.ac.uk/news-archive/2018/the-ethics-of-surrogacy-1 [https://perma.cc/6L2Q-2DWZ].
[44] Askley M. Eskew & Emily S. Jungheim, A History of Developments to Improve in vitro Fertilization, 114 J. of Mo. State Med. Ass’n 156, 156 (May 2017). https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6140213/.
[45] Id.
[46] ART Success Rates, Ctrs. for Disease Control and Prevention (last reviewed Sept. 25, 2023) https://www.cdc.gov/art/artdata/index.html [https://perma.cc/3YSD-X5C7].
[47] Eskew & Jungheim, supra note 44 at 156.
[48] ART Success Rates, supra note 46.
[49] Reproductive Health: Infertility, Ctrs. for Disease Control and Prevention (last reviewed Apr. 26, 2023) https://www.cdc.gov/reproductivehealth/infertility/index.htm #:~:text=Is%20infertility%20a%20common%20problem,year%20of%20trying%20(infertility). [https://perma.cc/YBB3-DDAL].
[50] Patel et al., supra note 27, at 213.
[51] Shelun Tsai et al., Surrogacy Laws in the United States: What Obstetrician-Gynecologists Need to Know, 135 Obstetrics & Gynecology 717, 717 (Mar. 2020) doi: 10.1055/s-0042-1759774.
[52] Brandão, supra note 39, at 1145 (“[C]urrent scientific data suggest [surrogacy] is safe”).
[53] Id. at 1144 (“[P]atients that resort to surrogacy are usually women (single or part of a couple) without [sic] uterus or with important uterine disorders impairing pregnancy, single men, and same-sex male couples.”).
[54] See Mohapatra, supra note 17, at 4-5.
[55] See Karen Gilchrist, The commercial surrogacy industry is booming as demand for babies rises, CNBC (Mar. 7, 2023) https://www.cnbc.com/2023/03/07/womb-for-rent-more-women-are-working-in-commercial-surrogacy-industry.html [https://perma.cc/N49W-JFLX].
[56] Id.
[57] Id.
[58] Id.
[59] Id.
[60] Ind. Code § 31-20-1-1 (1997); Ind. Code § 31-9-1-2 (1997).
[61] See Ind. Code § 31-9-1-1 (1997) (which states only that “the general assembly declares that it is against public policy to enforce any term of a surrogate agreement” without defining public policy).
[62] Ind. Code § 31-9-1-1 (1997).
[63] See In re Paternity of Infant T., 991 N.E.2d 596, 601 (Ind. Ct. App. 2013) (holding that “[i]t would not be in the best interests of the child and would be contrary to public policy to allow” a pre-birth disestablishment of maternity”).
[64] See In re Paternity of Infant T., 991 N.E.2d at 601 (holding that “[t]he indirect disestablishment of maternity requires a putative mother to petition the court for the establishment of maternity and to prove her maternity by clear and convincing evidence”).
[65] Ind. Code § 31-20-1-2 (1997).
[66] See 1997 Ind. Legis. Serv. P.L. 1-1997 (S.E.A. 8).
[67] See Ayesha Rasheed, Confronting Problematic Legal Fictions in Gestational Surrogacy, 24 J. Health Care L. & Pol’y 179, 180-181 (2022).
[68] Ind. Code § 31-20-1-1 (1997).
[69] See Id.
[70] See 1997 Ind. Legis. Serv. P.L. 1-1997 (S.E.A. 8); Ind. Code § 31-20-1-3 (1997).
[71] Ind. Code § 31-20-1-3 (1997).
[72] Id.
[73] See In re Paternity of Infant T., 991 N.E.2d 596 (Ind. Ct. App. 2013); See also In re Paternity of A.J., 146 N.E.3d 1075.
[74] In re Paternity of Infant T., 999 N.E.2d 843, 844 (Ind. 2013) (Rush, J., dissenting).
[75] Adoptive Parents of M.L.V. v. Wilkens, 598 N.E.2d 1054, 1059 (Ind. 1992) (implying Indiana courts typically view the person that gave birth to a child as that child’s mother).
[76] Maternity, Law Insider, https://www.lawinsider.com/dictionary/maternity#:~:text =Maternity%20means%20that%20physical%20state,or%20resulting%20from%20such%20state (last visited Nov. 27, 2023).
[77] In re Paternity of B.W.M. v. Bradley, 826 N.E.2d 706, 708 (Ind. Ct. App. 2005).
[78] Adoptive Parents of M.L.V. v. Wilkens, 598 N.E.2d at 1059.
[79] Id.
[80] In re Paternity of Infant T., 999 N.E.2d at 844 (Rush, J., dissenting).
[81] See In re Paternity of Infant T., 991 N.E.2d 596; See also In re Paternity of A.J., 146 N.E.3d 1075.
[82] See In re Paternity of Infant T., 991 N.E.2d at 600 (holding that the presumption of maternity will stand “unless [another woman] establishes she is, in fact, the biological mother of [the child].”) (quoting In re Paternity & Maternity of Infant R., 922 N.E.2d 59, 61-62 (Ind. Ct. App. 2010)).
[83] Id. at 601 (holding that “the indirect disestablishment of a maternity requires a putative mother to petition the court for the establishment of maternity and to prove her maternity by clear and convincing evidence”).
[84] Id. at 600.
[85] Id.
[86] See Mary P. Bym & Steven H. Snyder, The Use of Prebirth Parentage Orders in Surrogacy Proceedings, 39 Fam. L.Q. 633, 641 (2005).
[87] See generally In re Paternity of A.J., 146 N.E.3d 1075.
[88] In re Paternity of A.J., 146 N.E.3d at 1077.
[89] Id. at 1076.
[90] Id.
[91] Id. at 1081-82.
[92] Id. at 1082.
[93] Id.
[94] Id.
[95] Compare Id. with, In re Paternity of Infant T., 991 N.E.2d at 600.
[96] In re Paternity of A.J., 146 N.E.3d at 1082.
[97] See In re Paternity & Maternity of Infant T., 999 N.E.2d 843.
[98] Id. at 844 (Rush, J., dissenting).
[99] In re Paternity & Maternity of Infant R., 922 N.E.2d at 61.
[100] S. 1267, 123rd IN Gen. Assembly (2023).
[101] Id.
[102] Id.
[103] Id.
[104] Id.
[105] See Bills for 2024 Session, Indiana General Assembly, https://iga.in.gov/legislative /2024/bills (last visited Aug. 15, 2024).
[106] Ind. S. 1267 § 19.
[107] Id.
[108] Ind. S. 1267.
[109] Id.
[110] See Ind. S. 1267 §19 (For example, gestational surrogacy is “the process by which a woman attempts to carry and give birth to a child for an intended parent: (1) that is created through in vitro fertilization; and (2) to which the woman has made no genetic contribution”).
[111] Ind. S. 1267 § 22.
[112] Ind. S. 1267 § 22(a).
[113] Ind. S. 1267 § 22(b).
[114] Ind. S. 1267 § 24.
[115] Id.
[116] Id.
[117] Ind. S. 1267 § 23.
[118] Ind. S. 1267 §§ 28, 31.
[119] Id.
[120] Ind. S. 1267 § 31.
[121] Id.; See also Rachel Rebouché, Contracting Pregnancy, 105 Iowa L. Rev. 1591, 1613 (2020) (explaining that courts will not enforce specific performance when a clause requires a party to partake in certain “personal behavior or medical care”).
[122] Ind. S. 1267 § 31.
[123] See S. 1104, 122nd IN Gen. Assembly (2022).
[124] S. 1369 119th IN Gen. Assembly (2019).
[125] Id.
[126] S. 1104, 122nd IN Gen. Assembly (2022).
[127] Id.
[128] Linda Kirschner, House passes Eberhart’s bill supporting surrogate mothers, intended parents, Ind. House of Representatives Republican Caucus (Feb. 20, 2019) https://www.indianahouserepublicans.com/news/press-releases/house-passes-eberhart-s-bill-supporting-surrogate-mothers-intended-parents/ [https://perma.cc/T525-ZQTA] (Rep. Eberhart stated that “[w]ithout this legislation, no rules exist so either party can do whatever they like with no legal consequences. [. . .] [T]his bill would prevent situations like the parents abandoning the unborn child, or the surrogate mother keeping the child even though it is not biologically hers.”).
[129] Tsai, supra note 51 at 717; In re Paternity of B.W.M. v. Bradley, 826 N.E.2d 706, 708 (Ind. Ct. App. 2005).
[130] In re Paternity & Maternity of Infant R., 922 N.E.2d at 62.
[131] Kiran M. Perkins et al., Differences in the utilization of gestational surrogacy between states in the U.S., 5 Reprod. Biomed. & Soc’y Online 1, 2 (Apr. 2018) (finding that in over half of surrogate pregnancies, the egg implanted in the surrogate’s uterus was not the intended mother’s egg).
[132] Zaina Mahmoud & Elizabeth Chloe Romanis, On Gestation and Motherhood, 31 Med. L.R. 109, 115 (2023) (“Law assigning legal motherhood unquestioningly to the gestating individual before birth is odd, as gestation is not mothering.”) (emphasis in original).
[133] In re Paternity of Infant T., 991 N.E.2d at 600; See Ind. Code § 31-14-4-1 (2018).
[134] In re Paternity & Maternity of Infant R., 922 N.E.2d at 61.
[135] Id. (Stating that the Indiana courts are “confronted with reproductive technologies not contemplated when our Legislature initially sought to provide for the establishment of legal parentage for biological parents. Now, however, reproductive technologies have advanced to provide for gestational surrogacy where an egg from the biological mother is artificially inseminated with the sperm of the father and implanted into a host womb for incubation until birth”).
[136] Id.
[137] Id.
[138] See generally In re Adoption of B.C.S., 793 N.E.2d 1054 (Ind. Ct. App. 2003).
[139] Id. at 1058 (Even though the man adopting an infant was undoubtedly not the infant’s biological father, the court found “he has been from the beginning and continues to this day to be [the infant’s] father in terms that matter most. The bond between the two is very strong.”).
[140] Id. at 1062-63.
[141] Id. at 1063.
[142] Surrogacy Laws by State, supra note 10.
[143] Id.
[144] Cornell, supra note 20, at 13-14.
[145] Id.
[146] See Cleveland, C., C. & St. L. Ry. Co. v. Henry, 83 N.E. 710, 712 (Ind. 1908).
[147] Kirtley v. State, 84 N.E.2d 712, 714 (Ind. 1949).
[148] Contl. Basketball Ass’n, Inc. v. Ellenstein Enter., Inc., 669 N.E.2d 134, 140 (Ind. 1996).
[149] Ind. Code § 31-20-1-2 (1997).
[150] See Brandão, supra note 39, at 1142 (stating that the United States’ surrogacy industry was worth almost six billion dollars in 2012).
[151]Do Business in Indiana, Ind. Destination Develop. Corp. (2019) https://www.in.gov/iddc/do-business-in-indiana/#:~:text=Indiana%20has%20worked%20hard
%20to,and%20first%20in%20the%20Midwest. [https://perma.cc/RC7E-TWSJ] (“Indiana has worked hard to become one of the most advantageous states in the country for doing business.”).
[152] See Brandão, supra note 39, at 1142 (finding that “a complete process of surrogacy may cost as much as $200,000” in the United States).
[153] Id.
[154] See generally Lauren Danielowski, Reproduction as Work: Addressing a Gap in Current Economic Rights Discourses, 25 Health and Hum. Rts. J. 29 (2023).
[155] Ind. Code § 31-20-1-2 (1997); Cohen, supra note 1.
[156] Cohen, supra note 1.
[157] See In re Paternity of Infant T., 991 N.E.2d at 601 (holding that until another woman establishes that she is a child’s genetic mother, the surrogate will remain the legally recognized mother).
[158] Johnson v. Calvert, 851 P.2d 776, 782 (Cal. 1993).
[159] Id.
[160] Id.
[161] Id.
[162] Id.
[163] In re Paternity of S.R.I., 602 N.E.2d 1014, 1016 (Ind. 1992) (holding that “[p]roper identification of parents and child should prove to be in the best interests of the child for medical and psychological reasons”).
[164] Johnson, 851 P.2d at 783.
[165] See In re Paternity of Infant T., 991 N.E.2d at 601 (holding that public policy supports the establishment of paternity and maternity); see also Porter Cnty. Dev. Corp. v. Citibank (S.D.), N.A., 855 N.E.2d 306, 310 (Ind. Ct. App. 2006) (recognizing the “public policy that money must be permitted to flow freely in our economy”) (internal citations omitted); see also Culbertson v. Mernitz, 602 N.E.2d 98, 106 (Ind. 1992) (Dickson, J., dissenting) (recognizing “the fundamental value of patient autonomy and self-determination”).
[166] See S. 1267, 123rd IN Gen. Assembly (2023).
[167] See generally Elly Teman, The Social Construction of Surrogacy Research: An Anthropological Critique of the Psychosocial Scholarship on Surrogate Motherhood, 67 Soc. Sci. & Med. 1104, 1104 (2008).
[168] Cornell, supra note 20, at 13-14.
[169] Carolyn Barber, The business of renting wombs is thriving – and surrogates don’t always understand the risks, Fortune Well (Nov. 17, 2022) https://fortune.com/well/2022/11/ 17/business-thriving-surrogates-risks-reproductive-ethics-debate-america-carolyn-barber/ [https://perma.cc/5JCV-SP4Y].
[170] Sylvie Armstrong, Commercial Surrogacy: Building Families Outside of Family Law,
33 Hastings J. Gender & L. 3, 20 (2022).
[171] Ind. S. 1267 § 23(2).
[172] Fetters v. Fetters, 26 N.E.3d 1016, 1021 (Ind. Ct. App. 2015).
[173] Amanda Mushro, How Much Does Surrogacy Cost?, Today – NBC News (Jan. 8, 2024) https://www.today.com/parents/parents/surrogacy-costs-rcna40050 [https://perma.cc/2M23-PU5C%5D.
[174] See Barber, supra note 169.
[175] See generally N.Y. Fam. Ct. Act § 581-603 (2021).
[176] Id.
[177] Id.
[178] See Mushro, supra note 173 (discussing that a surrogate’s fee typically ranges from $30,000 to $60,000 and their legal fees range from $5,000 to $15,000).
[179] Payton Sy, What is Surrogacy and How Does It Work?, U.S. News (Nov. 17, 2023) https://health.usnews.com/health-care/patient-advice/articles/how-does-surrogacy-work [https://perma.cc/6LDE-74QZ].
[180] Id.
[181] See Jordan Stirling Davis, Regulating Surrogacy Agencies Through Value-Based Compliance, 43 J. Corp. L.663 (2018).
[182] Sy, supra note 179.
[183] See Davis, supra note 181, at 665 (discussing how surrogacy agencies “play a crucial role”).
[184] Brandão, supra note 39, at 1145 (discussing surrogacy agencies and their marketing in the United States and abroad).
[185] Mushro, supra note 173.
[186] See Alison A. Sconyers, 2 Cal. Transactions Forms, Fam. L. § 7:5 (2023) (describing how surrogacy agencies often serve as “objective decision makers and peacemakers” between parties during disagreements).
[187] See Barber, supra note 169; see also Davis, supra note 181.
[188] See Davis, supra note 181, at 679 (explaining that licensure requirements can “allow surrogacy agencies to continue playing their crucial role in the industry while protecting the stakeholders at risk in the surrogacy industry.”).
[189] Barber, supra note 169.
[190] Gestational Surrogacy Program Application Process and Guidance, N.Y. Dept. of Health (Oct. 2022) https://www.health.ny.gov/community/pregnancy/surrogacy/docs/ required_licensure_documents.pdf.
[191] Patel et al., supra note 27, at 215.
[192] S. 1267 § 24(b)(1), 123rd IN Gen. Assembly (2023).
[193] See What Are Some Common Complications of Pregnancy?, Nat’l Inst. of Health (Apr. 20, 2021) https://www.nichd.nih.gov/health/topics/pregnancy/conditioninfo/ complications [https://perma.cc/MY36-YES3] (Pregnancy-related complications include, but are not limited to: high blood pressure, gestational diabetes, depression and anxiety, and infections.).
[194] Ind. Code § 34-18-12-2 (2022).
[195] Id.
[196] Rebuttable Presumption, Black’s Law Dictionary (9th ed. 2009).
[197] S. 1267 § 31(a), 123rd IN Gen. Assembly (2023).
[198] Ind. S. 1267 § 31(b).
[199] Id. at § 31(c)-(d).
[200] Cohen, supra note 1.
[201] See generally Restatement (Second) of Conts. § 5 cmt. a, b (Am. L. Inst. 1981) (describing “agreed terms” and “contract terms supplied by law”).
[202] Even if the General Assembly passes a modified Gestational Surrogacy Act, it will likely not include traditional surrogacy. Thus, this discussion applies only to gestational surrogacy because a gestational surrogate does not sell or donate her gamete, which leaves her without a property interest in the potential embryo.
[203] See Cohen, supra note 1.
[204] 18 U.S. Code § 3182 (1996).
[205] Ind. Code § 35-33-10-3 (2022).
[206] U.S. Const. art. IV, § 1 (stating that “full faith and credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State”).
[207] See supra Part III, Section A (discussing the freedom to contract in Indiana).
[208] See Dobbs v. Jackson Women’s Health Organization, 142 S. Ct. 2228, 2242 (2022); See also S.B. 1, 122ndIN. Gen. Assembly (2022) codified as Ind. Code § 16-34-2-1 (2022).
[209] Deborah S. Mazer, Born Breach: The Challenge of Remedies in Surrogacy Contracts, 28 Yale J.L. & Feminism 211, 240 (2016).
[210] Marway, supra note 43.
[211] Cohen, supra note 1.
[212] See Ind. Code § 16-34-2-1 (2022) (stating that abortion is only allowed before twenty weeks gestation if “the fetus is diagnosed with a lethal fetal anomaly”).
[213] Cohen, supra note 1.
[214] N.Y. Fam. Ct. Act § 581-60 (2021).
[215] See generally N.Y. Fam. Ct. Act § 581-409 (2021).
[216] S.B. 1, 122nd IN. Gen. Assembly (2022) codified as Ind. Code § 16-34-2-1 (2022).
[217] Paul S. Berman et al., Conflicts of Law and the Abortion War Between the States, 172 U. PA. L. Rev. 399, 399-400 (2024) (discussing that “statutes criminaliz[ing] or impos[ing] civil liability on the actual pregnant person seeking the abortion [. . .] might be challenged under the Privileges and Immunities Clause of Article IV specifically, or as a violation of the constitutional right to travel more generally”).
[218] Katie O’Reilly, When Parents and Surrogates Disagree on Abortion, The Atlantic (Feb. 18, 2016) https://www.theatlantic.com/health/archive/2016/02/surrogacy-contract-melissa-cook/463323/ [https://perma.cc/BPF7-D9DB%5D.
[219] See supra note 40.
[220] S. 1267 § 30(b), 123rd IN Gen. Assembly (2023).
[221] See Elly Teman, The Social Construction of Surrogacy Research: An Anthropological Critique of the Psychosocial Scholarship on Surrogate Motherhood, 67 Soc. Sci. & Med. 1104, 1104 (2008).
[222] Maurice Rosenberg, Anything Legislatures Can Do, Courts Can Do Better?, 62 A.B.A. J. 587, 587 (1976) (“[C]ourts have the power to invalidate, interpret, and obliterate statutes, but they lack the mechanisms and capabilities of gathering the data frequently needed for these decisions”).
[223] In re Paternity & Maternity of Infant T., 999 N.E.2d at 844 (Rush, J., dissenting).
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