Establishing a Parental Relationship with a Child through Adoption

"Indiana law allows a person who is not a child’s biological parent to establish a parental relationship with a child through adoption. Any adult Indiana resident may file a petition to adopt a child. However, the process is not quick or easy. To legally adopt a child in Indiana, the adult must fill out an adoption petition. The petition requires a lot of information regarding both the child and petitioner.

The petition must state the child’s birthplace, sex, race, age, the new name for the child if desired, information regarding the child’s real or personal, if any, and the value and description of such property.

The petition also requires the name, age, and place of residency of the petitioner and if married, the place and date of their marriage. Additionally, the name and place of residence of the parent(s) of the child, the guardian, or nearest kin, if known, the agency the child is a ward of, or agency sponsoring the adoption, if any, is also required in the petition. The petitioner must include if there was a time the child lived with the petitioner, and whether the petitioner for adoption has been convicted of a crime with the date and description of the conviction.

In addition to all of that information, a medical report of the child’s health status and medical history of the birth parents must accompany the petition or be filed within sixty days. The medical report must include “neonatal, psychological, physiological, and medical care history” and be on state registrar forms. Additionally, the petitioner must also undergo fingerprinting and a criminal background check. Finally, if the court finds the requirements are met and the petitioned adoption is “in the best interest of the child”, the court will grant the petition.

For the purpose of parental consent for a child to be placed for adoption, Indiana has labeled children as “born in wedlock” or “born out of wedlock.” To be determined a child born in wedlock, “born in wedlock: a child must be born to (1) a woman; and (2) a man who is presumed to be to be the child’s father under I.C. 31-14-7-1(1) or I.C. 31-14-7-1(2) unless the presumption is rebutted.”

A child is determined to be born out of wedlock when “a child is born to a woman; and a man who is not presumed to be the child’s father under I.C. 31-14-7-1(1) or I.C. 31-14-7-1-(2).” These distinctions provide many additional benefits to the parents. Some including insurance, death benefits to the children, and limits the stigma children face if their parents are not married. These statutes are further discussed below.

The Unconstitutionality of Indiana Laws: Henderson v. Adams

Eight female, same-sex married couples, including Jackie and Lisa Phillips-Stackman and Noell and Crystal Allen, agreed to have children together and conceived through assisted reproduction. In each case, the birth mother was listed on the birth certificate and the non-birth mother sought to be listed as a parent on the certificate, which in Indiana the only way the non-birth parent would be recognized is if they went through the legal adoption process, as described above. The mothers of the children, all married, sought to be recognized on the birth certificate after birth and to have their children recognized as being born in wedlock. Indiana Code § 31-9-2-15 (“born in wedlock”), § 31-9-2-16 (“born out of wedlock”), and § 31-14-7-1 (biological father presumption), were challenged and held unconstitutional.

The purposes and objectives of Indiana's Parenthood Statutes are codified at Indiana Code § 31–10–2–1, which declares, it is the policy of this state and the purpose of this title to:

1. recognize the importance of family and children in our society;
2. recognize the responsibility of the state to enhance the viability of children and family in our society;
3. acknowledge the responsibility each person owes to the other;
4. strengthen family life by assisting parents to fulfill their parental obligations.[…]

Equal Protection Clause

As discussed above, the Equal Protection Clause of the Fourteenth Amendment provides that “[n]o state shall… deny to any person within its jurisdiction the equal protection of the laws” which includes protection against discrimination on the basis of sexual orientation.

The plaintiffs argued that Indiana’s refusal to allow the title of “parent” to female spouses of artificially-inseminated birth mothers while granting male spouses the title of parent violates the Equal Protection Clause. At the time, if an opposite-sex, married couple chose to use artificial insemination, for whatever reason, and the father had no biological relationship to the child, parenthood was presumed in the husband due to the fact that he was married to the mother.

The next argument plaintiffs make is that the “born in wedlock” and “born out of wedlock” statutes also violate the Equal Protection Clause. The plaintiffs contend that these statutes allow for a child born to a husband and wife to be considered “born in wedlock,” but do not recognize lawfully married same-sex women couples.

It has been held that sexual orientation is subject to heightened intermediate scrutiny. The statute will only survive intermediate scrutiny if it serves an important governmental objective and that the means employed are substantially related to the achievement of those objectives. Indiana has codified the objectives and declared,

“It is the policy of this state and the purpose of this title to:

1. recognize the importance of family and children in our society;
2. recognize the responsibility of the state to enhance the viability of children and family in our society;
3. acknowledge the responsibility each person owes to the other;
4. strengthen family life by assisting parents to fulfill their parental obligations.”

Courts in Indiana have focused numerous times on the interest of protecting the “best interests of the child.”

The Court holds that these statutes lead to unequal treatment based on gender and sexual orientation; therefore, violating the Equal Protection Clause and without the state providing a substantial state interest for the unequal treatment, the Court is obligated to rule them unconstitutional.

Due Process

“No state shall… deprive any person of life, liberty, or property, without due process of law.” As discussed above, these liberties include certain personal choices, including intimate choices that define personal identity and beliefs. The Plaintiffs argue the Due Process claim should be reviewed under strict scrutiny because it involves a fundamental right. Under strict scrutiny, “when a statutory classification significantly interferes with the exercise of a fundamental right, it cannot be upheld unless it is supported by sufficiently important state interests and is closely tailored to effectuate only those interests.”

It has been long held that fundamental rights include “matters relating to marriage, family, procreation, and the right to bodily integrity, and the oldest of fundamental liberties is a “parent’s liberty interest in the care, custody, and control of their children.” One court interpreted the Supreme Court’s decision in Troxel v. Granville to establish a fundamental right in being a parent.

The Court in Henderson Held

“The Parenthood Statutes and the State Defendant's implementation of the statutes through the Indiana Birth Worksheet significantly interferes with the Plaintiffs' exercise of the right to be a parent by denying them any opportunity for a presumption of parenthood which is offered to heterosexual couples. What Plaintiffs seek is for their families to be respected in their dignity and treated with consideration […] By refusing to grant the presumption of parenthood to same-sex married women, the State Defendant violates the Plaintiffs' fundamental right to parenthood under the Due Process Clause.”"

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