F:\29120 Ind Law Rev 48-2\48 masthead.wpd


PROTECTING THE RIGHTS OF CHILDREN OF SAME-SEX
PARENTS IN INDIANA BY ADOPTING A VERSION OF

THE UNIFORM PARENTAGE ACT

ELIZABETH TRAYLOR*

INTRODUCTION

On October 31, 2013, the Indiana Court of Appeals issued an opinion in the
matter of A.C. v. N.J., a custody dispute that involved a same-sex couple and the
child that they conceived together through artificial reproductive technology
(“ART”).1  In that opinion, the court called on the Indiana legislature to fill the
gap in Indiana law for non-traditional families such as this one.2  This occasion
was not the first time, nor will it likely be the last, that a court has asked the
legislature to devise a legal framework for the growing number of non-traditional
families in Indiana; however, the legislature has yet to act.3  Despite the rapidly
growing number of families created by same-sex and heterosexual couples
through ART, Indiana law has yet to grow with them.4  Indiana law currently
defines “parent” narrowly,5 which ultimately results in some children being
deprived of fundamental parental relationships; families that are unrecognized by
Indiana law; and judges sorting out this legal uncertainty in court rooms.    

Part I of this Note gives a brief overview of the history of parentage laws in
the United States and discusses how the U.S. Supreme Court established a
standard for determining paternity that defined a father’s constitutional right to
be a parent.  Next, Part II discusses the current state of Indiana statutes and case
law as they pertain to families and parentage, and demonstrates how these tools
are failing Indiana families.  This lack of guidance creates practical problems in
Indiana courts, generates uncertainty among families, and often deprives children
of important relationships in their lives.  Part III discusses the nature of the
problem as the numbers of non-traditional families in Indiana and the United
States grow, and shows that the children of these families have similar due
process and equal protection rights to a family that the U.S. Supreme Court has
recognized for adults.  Finally, Part IV explores ways to fill Indiana’s legal gap,
ultimately proposing that Indiana adopt its own version of the Uniform Parentage

* J.D. candidate, 2015, Indiana University Robert H. McKinney School of Law; B.A.,
2002, John Carroll University, Cleveland, Ohio.  

1. A.C. v. N.J., 1 N.E.3d 685, 687 (Ind. Ct. App. 2013).
2. Id. at 692.
3. See In re A.B., 818 N.E.2d 126, 131 (Ind. Ct. App. 2004), vacated by King v. S.B., 837

N.E.2d 965 (Ind. 2005) (“We encourage the Indiana legislature to help us address this current social
reality by enacting laws to protect children who, through no choice of their own, find themselves
born into unconventional familial settings.”).

4. THE WILLIAMS INSTITUTE, INDIANA CENSUS SNAPSHOT:  2010 (2010), available at
http://williamsinstitute.law.ucla.edu/wp-content/uploads/Census2010Snapshot_Indiana_v2.pdf
[hereinafter INDIANA CENSUS SNAPSHOT:  2010].

5. IND. CODE § 31-9-2-88 (2013).

http://dx.doi.org/10.18060/4806.0009



696 INDIANA LAW REVIEW [Vol. 48:695

Act (“UPA”) as the Indiana Uniform Parentage Act (“INUPA”) in order to better
address the issues presented by families that Indiana law currently leaves behind. 

I.  DEFINING FAMILY AND PARENTAGE

In the matter of A.C. v. N.J., the Indiana Court of Appeals grappled with the
rights of a non-biological parent’s visitation rights.  The parent was part of a
same-sex couple and the child was conceived through ART.6  In that case, the
court expressed concern over the current state of Indiana law in this area.7  In the
opinion, Judge Friedlander laments that: 

We feel the vacuum of such guidance even more acutely now . . . what
began as a trickle is rapidly becoming a torrent, and the number of
children whose lives are impacted by rules that have yet to be written
only increases with the passage of time.  They, and we, would welcome
a legislative roadmap to help navigate the novel legal landscape in which
we have arrived.8

Justice Rush, of the Indiana Supreme Court, agreed with Judge Friedlander’s
concerns and also pointed out this lack of legislative guidance.9 

The day after A.C. v. N.J. was decided, another case, In re Paternity of Infant
T, was denied transfer by the Indiana Supreme Court.  Justice Rush dissented in
that opinion saying that she would “grant transfer . . . 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.”10  In re Paternity of Infant T involved ART and surrogacy.11  The
biological father sought to disestablish the parentage of the surrogate and
establish his paternity as the biological father.12  This case is illustrative of the
fact that parentage issues also include heterosexual couples who seek to produce
children through ART.13 

Before a discussion can be had about the gaps and deficiencies that exist in
Indiana’s legal system for certain families, it is necessary to first consider the
historical developments that have played a role in defining a family and the

6. A.C., 1 N.E.3d at 685.
7. Id. at 692.
8. Id.
9. See, e.g., In re Paternity of Infant T., 999 N.E.2d 843, 843 (Ind. 2013) (Rush, J.,

dissenting); see also Gary J. Gates, LGBT Parenting in the United States, THE WILLIAMS INSTITUTE
(Feb. 2013), available at http://williamsinstitute.law.ucla.edu/wp-content/uploads/LGBT-
Parenting.pdf, archived at http://perma.cc/T5CN-4VYG.

10. In re Paternity of Infant T., 991 N.E.2d 596 (Ind. Ct. App.), trans. denied, 999 N.E.2d
843 (Ind. 2013) (Rush, J., dissenting). 

11. Id.
12. Id. 
13. Id.



2015] PROTECTING THE RIGHTS OF CHILDREN 697

current state of the parentage laws in the United States.  

A.  The Marital Presumption
Traditionally, the law defined families within the context of marriage under

“the marital presumption.”14  This doctrine assumed that a mother’s husband was
a child’s father.15  This definition of family fulfills several purposes including: 
efficient identification of a child’s father;16 legal recognition of a traditional
family consisting of a husband, wife, and children; and protecting a child from
illegitimacy.17  Furthermore, this framework largely identified a father’s role as
an economic one.  Fathers were expected to provide for their children, and their
children, in turn, were expected to provide labor.18  This economic view of the
father’s role contributed to the idea that children are their parents’ property; this
view has been perpetuated in American custody decisions.19  One commenter
observed that this “enduring legacy of genetic ownership grounded in patriarchal
traditions has shaped our legal definition of parenthood.”20  The concept of
children as property has resulted in parents’ assertions of “rights,” and in courts’
recognition of a parent’s constitutional rights, regarding possession and control
of a child.21

Although the marital presumption was a useful tool for identifying fathers in
eighteenth and nineteenth century England and America, the current definition
of parents and families has changed dramatically.22  Families are no longer
necessarily comprised of a mother, father, and children.  It is increasingly
unlikely today that children are cared for solely by a stay-at-home parent.23 
Rather, in 1999, over two thirds of preschool children were cared for by people
other than their parents.24

Additionally, according to the Centers for Disease Control, almost forty-one
percent of births in 2011 were to unmarried women.25  The changes in the

14. Jane C. Murphy, Legal Images of Fatherhood: Welfare Reform, Child Support
Enforcement, and Fatherless Children, 81 NOTRE DAME L. REV. 325, 326 (2005).

15. Id. 
16. Melanie B. Jacobs, Overcoming the Marital Presumption, 50 FAM. CT. REV. 289, 290

(2012).
17. Murphy, supra note 14, at 326.
18. Id.
19. Id.
20. Barbara Bennett Woodhouse, Hatching the Egg:  A Child-Centered Perspective on

Parents’ Rights, 14 CARDOZO L. REV. 1747, 1811 (1993).
21. See id.
22. Murphy, supra note 14, at 326.
23. Matthew M. Kavanagh, Rewriting the Legal Family:  Beyond Exclusivity to a Care-Based

Standard, 16 YALE J.L. & FEMINISM 83, 93 (2004).
24. Id.
25. JOYCE A. MARTIN, M.P.H. ET AL, NATIONAL VITAL STATISTICS REPORT, VOL. 62 NO. 1

(June 28, 2013), available at http://www.cdc.gov/nchs/fastats/unmarried-childbearing.htm,



698 INDIANA LAW REVIEW [Vol. 48:695

structure, the increase in the birthrate outside of marriage, the legal legitimacy of
non-marital children, and scientific advances that allowed for easier
determination of paternity all led to a shift in the definition of parent recognized
by the U.S. Supreme Court.26  Once the marital presumption was no longer a
reliable indicator of fatherhood, the role of a father began to expand beyond the
financial aspects.27  Unmarried fathers were permitted to prove their status as a
“legal father” by showing both their “biological connection” and that they had
forged a relationship with the child.28  Several U.S. Supreme Court decisions in
the 1970s confirmed a parent’s constitutional right to be a parent on equal
protection29 and due process grounds through what has been referred to as the
“biology plus” test.30

B.  The U.S. Supreme Court and “Biology Plus”
The U.S. Supreme Court rarely decides domestic relations issues because

family law is within the purview of the states.31  However, in the few cases the
Court has taken up regarding domestic relations issues, the Court has confirmed
a parent’s liberty interest in the “companionship, care, custody, and management
of his or her children.”32  The U.S. Supreme Court has also had several occasions
to decide issues of paternity.  

In one of the first paternity cases, Stanley v. Illinois, the Court recognized the
liberty interest of an unmarried biological parent.33  There, an unmarried father
and mother with three children lived together for eighteen years.34  After the
mother died, the children were taken away from their father, and became wards
of the state because Illinois law did not recognize unwed fathers as legal
parents.35  The Court found that the father had valid claims on both equal

archived at http://perma.cc/N9UN-GN5N.
26. Murphy, supra note 14, at 326; see, e.g., Stanley v. Illinois, 405 U.S. 645 (1972). 
27. Murphy, supra note 14, at 344.
28. Id. at 337. 
29. The Due Process Clause of the Fourteenth Amendment to the U.S. Constitution provides

that no state shall “deprive any person of life, liberty, or property, without due process of law.” U.S.
CONST. amend. XIV, § 1.  See also Meyer v. Nebraska, 262 U.S. 390, 390 (1923) (“[W]ithout due
process of law, ‘liberty’ denotes, not merely freedom from bodily restraint, but also the right of the
individual to . . . marry, establish a home, and bring up children, . . . and generally to enjoy those
privileges long recognized at common law as essential to the orderly pursuit of happiness by free
men.”).

30. Melanie B. Jacobs, My Two Dads:  Disaggregating Biological and Social Paternity, 38
ARIZ. ST. L.J. 809, 827 (2006).  

31. See In re Burrus, 136 U.S. 586, 586 (1890). 
32. Stanley v. Illinois, 405 U.S. 645, 651 (1972); see also Pierce v. Soc’y of the Sisters of

the Holy Names of Jesus & Mary, 268 U.S. 510 (1925); Meyer v. Nebraska, 262 U.S. 390 (1923).
33. Stanley, 405 U.S. at 646.
34. Id. 
35. Id. at 647. 



2015] PROTECTING THE RIGHTS OF CHILDREN 699

protection and due process grounds because the vital interest a man has, “in the
children he has sired and raised, undeniably warrants deference and, absent a
powerful countervailing interest, protection.”36  After Stanley was decided, the
Court issued three opinions dealing with step-parent adoption and paternity,
which established the “biology plus” standard.37  This standard required men to
demonstrate, in addition to their biological connection to a child, that they “had
actively engaged in parenting.”38

In the most recent related U.S. Supreme Court decision, Lehr v. Robinson,
Justice Stevens noted that biology is merely a starting point for a parental right,
noting that:

[T]he significance of the biological connection is that it offers the natural
father an opportunity that no other male possesses to develop a
relationship with his offspring.  If he grasps that opportunity and accepts
some measure of responsibility for the child's future, he may enjoy the
blessings of the parent-child relationship and make uniquely valuable
contributions to the child's development.  If he fails to do so, the Federal
Constitution will not automatically compel a State to listen to his opinion
of where the child's best interests lie.39

This line of cases following Stanley indicate that the U.S. Supreme Court
favors a “family unit,” yet caution that a father risks losing his parental rights if
he does not actively parent a child.40  The U.S. Supreme Court appears to prefer
a “family unit” that is comprised of parents who are actively parenting, regardless
of their biological connection to the child.41  If, according to the Court, biology
is not enough for establishing a parental relationship, then in the context of same-
sex parentage, perhaps a parent without a biological connection, such as a non-
biological same-sex mother, could establish parentage through demonstrating a
“full commitment to the responsibilities of parenthood.”42  Although the Court
has not expressly decided a case involving the scope of same-sex parenting rights,
precedent shows the Court’s interest in protecting established, functioning family
units.  Nevertheless, states need not wait for the U.S. Supreme Court to evaluate

36. Id. at 651.
37. Murphy, supra note 14, at 336.  See Lehr v. Robertson, 463 U.S. 248, 262 (1983)

(declining to extend constitutional protection to a biological father’s rights to his daughter); Caban
v. Mohammed, 441 U.S. 380, 394 (1979) (holding that a father’s equal protection and due process
rights were violated because adoption statute “discriminate[d] against unwed fathers even when
their identity [was] known and they [had] manifested a significant paternal interest in the child”);
Quilloin v. Walcott, 434 U.S. 246, 255 (1978) (holding that adoption of son by mother’s new
husband was not a violation of biological father’s rights because he never sought physical or legal
custody of his son and the Court was protecting “a family unit already in existence”). 

38. Jacobs, supra note 30, at 828.
39. Lehr, 463 U.S. at 262.
40. See id. at 267.
41. See id. at 268.
42. Id. at 248.



700 INDIANA LAW REVIEW [Vol. 48:695

the constitutional rights of a same-sex parents, and they are free to enact laws
defining parentage within the guidelines the Court has set forth. 

II.  CURRENT STATE OF PARENTAGE IN INDIANA 

A.  The Indiana Code
In 1997, the Indiana General Assembly rewrote the family and juvenile laws

of Indiana so that they would be “clear, concise, and easy to interpret and
apply.”43  While that goal might have been accomplished in 1997, the Indiana
Code still has gaps that exclude many Indiana families.  The Indiana Code
narrowly defines a parent as “a biological or an adoptive parent.”44  It further
provides that “[u]nless otherwise specified, the term includes both parents,
regardless of their marital status.”45  This also includes an “alleged father,”46
which is “any man claiming to be or charged with being a child’s biological
father.”47  There is not an Indiana statute that provides for the intent of parents to
raise a child as their own, recognized as “intentional parents,”48 except in
surrogacy situations;49 however, Indiana does recognize a de facto custodian as: 

[A] person who has been the primary caregiver for, and financial support
of, a child who has resided with the person for at least:

(1) six (6) months if the child is less than three (3) years of age;
or
(2) one (1) year if the child is at least three (3) years of age.50

Although the intent of this statute is to allow third parties to have standing in
determining the custody of a child,51 there is still a presumption in favor of the
biological parent that must be overcome in order to show that a de facto custodian
is in the best interests of the child.52  Indiana law does provide for a presumption
of paternity in cases where the “man and the child’s biological mother are or have
been married to each other” and if the child is born “not later than three hundred

43. IND. CODE § 31-10-1-1 (2013).
44. Id. § 31-9-2-88(a).
45. Id. 
46. Id. § 31-9-2-9.
47. Id. § 31-9-2-88(b).
48. California law provides that a “presumed parent” could be one who “receives the child

into his or her home and openly holds out the child as his or her natural child.” CAL. FAM. CODE
§ 7611(d) (West 2013). 

49. See IND. CODE § 31-9-2-63 (2013) (providing that an “intended biological parent” is one
who is a “party to a surrogate agreement who:  (1) agrees to be or is genetically related to a child
borne by a surrogate; and (2) is not the surrogate’s spouse.”). 

50. Id. § 31-9-2-35.5.
51. See In re Guardianship of L.R.T. & A.J.B., 979 N.E.2d. 688 (Ind. Ct. App. 2012), trans.

denied, 938 N.E.2d 1157 (Ind. 2013); A.J.L. v. D.A.L., 912 N.E.2d 866 (Ind. Ct. App. 2009). 
52. In re Guardianship of L.R.T. & A.J.B., 979 N.E.2d. at 690.  



2015] PROTECTING THE RIGHTS OF CHILDREN 701

(300) days after the marriage is terminated by death, annulment, or dissolution.”53 
Indiana law also recognizes paternity in cases where a marriage is void due to a
prior existing marriage,54 between cousins,55 and involves mental incompetence.56 
This is in line with Indiana’s general policy that informs the family law that seeks
to “recognize the importance of families and children in our society,”57 as these
provisions seek to protect children by establishing paternity even when there is
a marriage that Indiana law does not recognize.58  The gaps in the Indiana Code
have resulted in case law that does not provide much guidance to families, judges,
and lawyers as they seek to protect different types of families in Indiana,
especially same-sex families. 

B.  Indiana Case Law
As A.C. v. N.J. illustrates, Indiana case law does not provide much guidance

for same-sex couples. 59  In this case, two women who had been together for two
years and had celebrated a commitment ceremony decided to conceive a child
through artificial insemination.60  The biological mother carried the child while
her partner worked and supported the family financially.61  Their son was born in
April, 2008.62  The partner was present at the birth of the child and cut the
umbilical cord.63  The family lived together for two years as a “family unit.”64 
There was discussion of the partner adopting the child, but no one ever started the
process.65  This was mainly due to the expense of an adoption, and the partner and
mother had already agreed to raise the child together.66  In 2010, the biological
mother and the partner ended their relationship and the partner was allowed
visitation time with the child, while the biological mother had primary custody.67 
Eventually, this arrangement ceased to work and allegations were made of the
partner not providing any financial support.68  When the biological mother denied

53. IND. CODE § 31-14-7-1 (2013).
54. Id. § 31-11-8-2.
55. Id. § 31-11-8-3.
56. Id. § 31-11-8-4.
57. Id. § 31-10-2-1.
58. Id. § 31-11-1.
59. A.C. v. N.J., 1 N.E.3d 685, 687 (Ind. Ct. App. 2013).
60. Id. 
61. Id.
62. Id.
63. Id.
64. Id.
65. Id.
66. Brief for Appellant at 4, A.C. v. N.J., 1 N.E.3d 685 (Ind. Ct. App. 2013) (No. 20A04-

1301-DR-37).
67. A.C., 1 N.E.3d at 687-88.
68. Id. at 688.



702 INDIANA LAW REVIEW [Vol. 48:695

the partner access to the child, the partner filed a suit seeking custody.69  
In the suit, the partner asserted three theories as to why she should be granted

custody of the child even though she was not biologically related to the child and
was, under Indiana law, a legal stranger to the child.70  The first theory was that
it was the intention of the parties that they would both be considered the child’s
parents, the second was that it was in the child’s best interest that she have
custody, and finally, that she was a “de facto custodian.”71  The trial court rejected
all three of these arguments and concluded that the partner did not even have
standing to bring a suit for visitation.72  It is necessary here to engage in a brief
discussion of which parties in Indiana can and cannot bring custody and visitation
suits.
 Standing in a custody dispute refers to which parties can bring a suit for
custody or visitation.73  Typically, this regards the parents of a child,74 but Indiana
case law varies as to which parties might have that ability to bring these types of
challenges.  The existing case law recognizes that step-parents might have
standing in a custody proceeding.75  Furthermore, the Indiana legislature created
the Grandparent Visitation Act,76 which “left the development of the law on the
rights of parties, other than parents and grandparents, to the sound discretion of
the courts.”77  

Indiana jurisprudence responded to the U.S. Supreme Court’s decision in
Troxel v. Granville, which drastically limited third-party rights of visitation by
giving great weight to a parent’s decision.78  The Indiana courts concluded that
when considering visitation, they would consider the following factors:  “the
presumption that a fit parent acts in his or her child’s best interests, the special
weight afforded a fit parent’s decision to deny visitation, and whether the parent

69. Id.
70. Id. at 687.
71. Id. at 688.
72. Id. at 694. 
73. BLACK’S LAW DICTIONARY Standing (9th ed. 2009).
74. Id.
75. See Collins v. Gilbreath, 403 N.E.2d 921, 923-24 (Ind. Ct. App. 1980) (holding that

awarding visitation to a step-father was proper in light of the fact that the children had recently lost
their mother and this would help the transition to their new life with their biological father, but also
noting that the holding was narrow and was not extended to unrelated third persons or
grandparents).

76. IND. CODE § 31-1-11.7-2 (repealed 1997).
77. Tinsley v. Plummer, 519 N.E.2d 752, 754 (Ind. Ct. App. 1988).
78. In Troxel v. Granville, a mother wanted to limit the time her children spent with their

paternal grandparents following the death of her husband, but a Washington statute allowed for any
person to petition for custody at any time and the paternal grandparents sought visitation.  The U.S.
Supreme Court concluded that the statute was too broad and infringed on a biological mother’s
substantive due process rights to make decisions in the best interests of her children.  Troxel v.
Granville, 530 U.S. 57 (2000).  



2015] PROTECTING THE RIGHTS OF CHILDREN 703

had denied or simply limited visitation.”79  Although Indiana courts were showing
great deference to parental decisions regarding visitation, the courts did not
specifically limit third-party standing only to step-parents.80  However, in Worrell
v. Elkhart County Office of Family & Children, the Indiana Supreme Court
concluded that foster parents did not have standing as third-parties seeking
visitation, thus setting an actual limitation on who could seek visitation.81  

Although these decisions affect step-parents, grandparents, and foster parents,
the rights of same-sex parents remain largely undefined.82  In terms of same-sex
standing, there is uncertainty regarding “whether former same-sex partners might
fall within the class of nonparents with standing to seek third-party visitation.”83 
Although in A.C. v. N.J. the trial court concluded that the partner did not have
standing to seek custody, the Indiana Court of Appeals concluded that the partner
did have standing to seek custody of the child.  The Indiana Court of Appeals
noted that it was likely that “custodial and parental relationships may exist with
third parties other than stepparents.”84  In coming to this conclusion, the Indiana
Court of Appeals looked at the facts that indicated what kind of relationship the
partner had with the child, including the partner’s and the biological mother’s
intent to raise the child together and the parental bond between the partner and the
child.85  These facts indicated to the court that it was in the best interest of the
child to maintain a relationship with the partner.86  In the wake of A.C. v. N.J.,
same-sex couples now have access to the courts when resolving custody disputes,
yet it remains largely uncertain what rights the courts will recognize.  

Prior to the decision in A.C. v. N.J., Indiana courts had few occasions to
decide the rights of same-sex couples in custody cases,87 and the jurisprudence
that exists is inconclusive.88  In addressing the partner’s other two arguments,
based on the intent of the couple to raise the child together and her status as a de
facto parent, the A.C. v. N.J. court looked to a ten-year-old case where it decided
a similar same-sex custody issue.  That case, In re A.B., involved a same-sex
couple that had been in a relationship for nine years and chose to have a child
through ART.89  When the couple’s relationship ended, the biological mother,
who carried the child, allowed liberal visitation to her partner who also paid child

79. A.C. v. N.J., 1 N.E.3d 685, 695 (Ind. Ct. App. 2013).  
80. Id. 
81. Worrell v. Elkhart Cnty. Office of Family & Children, 704 N.E.2d 1027, 1029 (Ind.

1998).
82. A.C., 1 N.E.3d at 696.
83. Id.
84. Id. at 697.
85. Id. at 693.
86. Id.
87. See M.S. v. C.S. 938 N.E.2d 278 (Ind. Ct. App. 2010); In re A.B., 818 N.E.2d 126, 131

(Ind. Ct. App. 2004), vacated by King v. S.B., 837 N.E.2d 965 (Ind. 2005). 
88. See generally A.C., 1 N.E.3d at 685; In re A.B., 818 N.E.2d at 126.
89. In re A.B., 818 N.E.2d at 128.



704 INDIANA LAW REVIEW [Vol. 48:695

support.90  The biological mother eventually denied visitation to the partner, and
the partner filed an action seeking to be recognized as the child’s legal parent or,
in the alternative, to be recognized as a de facto parent with visitation rights.91 
The trial court dismissed the case and did not recognize any right for the partner
to have visitation with the child.92  This is another illustration of the problem that
many same-sex parents face when seeking to enforce their parental rights.  Until
there is a legal recognition of the same-sex parent’s role in a child’s life, courts
will continue to dismiss claims at the outset, similar to the trial court decision in
A.C. v. N.J.93

In In re A.B., the Indiana Court of Appeals noted that it was “sympathetic”
to the claim, and observed a strong “apparent bonding” between the partner and
the child.94  However, that court also stated that, “it is sufficient to note that [the
partner] has no relationship to [the child] within the context of any relationship
presently given legal recognition by the State of Indiana that might permit her to
claim parentage of [the child].”95  Just like the court in A.C. v. N.J., this court
asked for guidance from the legislature stating, “[it is] sufficiently prescient to
anticipate that the law will have to extend some form of recognition to gay and
lesbian relationships to create a structure within which a myriad of legal issues
emanating from such partnerships.”96  What is striking about this statement is that
it was made in 2004, more than a decade ago, and the Indiana legislature has yet
to act, despite repeated requests for guidance from Indiana courts.97  

The Indiana Court of Appeals, in In re A.B., ultimately overturned the trial
court’s dismissal and concluded that, “when two women involved in a domestic
relationship agree to bear and raise a child together by artificial insemination of
one of the partners with donor semen, both women are the legal parents of the
resulting child.”98  Although the opinion from the Indiana Court of Appeals
offered much needed guidance, on transfer, the Indiana Supreme Court vacated
this opinion.99  While the Indiana Supreme Court agreed that the case should not
be dismissed for failure to state a claim, it narrowed the holding to a procedural
posture.100  The Indiana Supreme Court found that “at least some of the relief
sought” by the partner fell within the discretion of the trial court to determine
because Indiana courts do have the ability to “place a child with a person other

90. Id.
91. Id.
92. See generally id.
93. A.C., 1 N.E.3d at 697.
94. In re A.B., 818 N.E.2d at 128.
95. Id. at 129.
96. Id. at 128-29.
97. See, e.g., id.; see also In re Paternity of Infant T., 991 N.E.2d 596 (Ind. Ct. App.), trans.

denied, 999 N.E.2d 843 (Ind. 2013) (Rush, J., dissenting); A.C., 1 N.E.3d at 692.
98. In re A.B., 818 N.E.2d at 131-32.
99. King v. S.B., 837 N.E.2d 965 (Ind. 2005).

100. Id. at 967.



2015] PROTECTING THE RIGHTS OF CHILDREN 705

than the natural parent.”101  The Indiana Supreme Court also recognized that
“Indiana law ‘provide[s] a measure of protection for the rights of the natural
parent, but more importantly, it embodies innumerable social, psychological,
cultural, and biological considerations that significantly benefit the child and
serve the child’s best interests.”102  While this opinion seems to open the door for
same-sex parents to at least be heard on the issue of visitation, it is hardly a clear
path.  Justice Dickson, in his dissent, makes it clear that this is not an area that
will be easily settled.103  In his opinion, this result was not representative of the
will of the people of Indiana.104  As the court notes in A.C. v. N.J., “the status of
the law surrounding a lesbian partner’s right, if any, to enjoy the rights of a legal
parent of a child . . . remains uncertain.”105 

In its decision in A.C. v. N.J. the court of appeals looked to the Indiana
Supreme Court’s decision to vacate In re A.B. for guidance in addressing the de
facto parent and intention of the parties claim by the partner.106  The court further
concluded that in light of the Indiana Supreme Court’s apparent disapproval of
its decision in In re A.B., it agreed with the trial court and would not enforce an
agreement based on the intent of the parties to raise the child together.107  The
court further added in A.C. v. N.J. that it would leave the decision to recognize
that type of agreement to the Indiana Supreme Court.108  The A.C. v. N.J. court
addressed the de facto parent argument in a footnote, and concluded that even if
the partner could be considered a de facto parent, she would have to overcome the
presumption in favor of the natural parent, and the Court of Appeals agreed with
the trial court that she had not successfully overcome this presumption.109 
Finally, the court recognized that the partner had standing to seek visitation with
the child as a third party and remanded the decision to the lower court to consider
the request for visitation.110  

As A.C. v. N.J. and In re A.B. both illustrate, in same-sex custody and
visitation disputes the Indiana courts currently have very few tools.111  The
Indiana Code provides no avenue for a same-sex parent to assert a right to

101. Id.
102. See id. (citing In re Guardianship of B.H., 770 N.E.2d 283, 287 (Ind. 2002)).
103. See King, 837 N.E.2d at 971 (Dickson, J., dissenting).
104. See id. (Justice Dickson stating, “The common law should not, in my opinion, be used

to provide non-statutory privileges arising out of same-sex domestic relationships when, as here,
not only is Indiana public opinion deeply fractured, but also a significant majority of Indiana
citizens favor a public policy that does not promote same-sex families.”). 

105. A.C. v. N.J., 1 N.E.3d 685, 692 (Ind. Ct. App. 2013).
106. Id.
107. Id. at 693.
108. Id.
109. Id. at 697 n.6.
110. Id. at 697.
111. A.C., 1 N.E. 3d at 685; see also In re A.B. 818, N.E.2d 126 (Ind. Ct. App. 2004), vacated

by King v. S.B., 837 N.E.2d 265 (Ind. 2005).



706 INDIANA LAW REVIEW [Vol. 48:695

visitation112 and Indiana case law does not directly address the practical problems
that judges face in resolving these family matters.113  The occurrence of these
types of issues will continue to grow steadily along with the rise in the number
of families being created by same-sex partners.114 

III.  THE GROWING PROBLEM AND ADDRESSING THE RIGHTS OF CHILDREN
OF SAME-SEX FAMILIES

A.  The Growing Number of Non-Traditional Families in Indiana and the
United States

As Judge Friedlander correctly points out in A.C. v. N.J., the number of
family situations like this are “rapidly becoming a torrent.”115  According to the
Centers for Disease Control (“CDC”), the rate of ART has doubled over the past
decade with one percent of all births in the United States from ART.116 
According to a study by the Williams Institute, “[m]ore than 111,000 same-sex
couples are raising an estimated 170,000 biological, step, or adopted children [in
the United States].”117  Specifically, Indiana has 11,074 same-sex couples, and
nineteen percent of those couples raising their own children.118  Families look
different than they did decades ago and are being created in a variety of ways,
through ART, adoption, divorce, and remarriage.  Indiana law has not yet caught
up with these changes in families and there continues to be a dearth of legislation
to help these families define themselves and gain legal protection.  

This problem is only going to become more pronounced after the recent U.S.
Supreme Court decision in United States v. Windsor.119  This decision struck
down Section Three of the Defense of Marriage Act (“DOMA”), which defined

112. IND. CODE § 31-17-5-1 (2013).
113. See A.C., 1 N.E.3d at 685.
114. Gates, supra note 9.  A poll conducted by Bellweather Research and Consulting on behalf

of Freedom Indiana, the organization fighting the legislation that would amend the Indiana
Constitution to include a definition of marriage as between one man and one woman, stated that
twenty-eight percent of Hoosiers indicate that their support for same-sex marriage has grown over
the last few years.  See also Memorandum from Bellweather Research and Consulting to Freedom
Indiana (Sep. 22, 2013), available at https://docs.google.com/file/d/0B26QlHJ1fUtGTjV4S
2ZLUkYwM3c/edit, archived at http://perma.cc/DH96-V826.

115. A.C., 1 N.E.3d at 692.
116. Assisted Reproductive Technology:  Most Recent ART Data, CENTERS FOR DISEASE

CONTROL AND PREVENTION (July 30, 2014, 11:04pm), http://www.cdc.gov/ART, archived at
http://perma.cc/UXJ9-SD7B. 

117. See Gates, supra note 9.
118. See INDIANA CENSUS SNAPSHOT:  2010, supra note 4. 
119. In United States v. Windsor, the United Supreme Court held that section 3 of the Defense

of Marriage Act (“DOMA”), which defined marriage as between a man and a woman, violated the
Fifth Amendment and was therefore unconstitutional.  United States v. Windsor, 133 S. Ct. 2675
(2013). 



2015] PROTECTING THE RIGHTS OF CHILDREN 707

marriage as between a man and a woman, as a violation of the Fifth
Amendment.120  Justice Kennedy noted in the opinion, that the DOMA “makes
it even more difficult for the children to understand the integrity and closeness of
their own family and its concord with other families in their community and in
their daily lives.”121  This is also true for families affected by the void of state
legislation recognizing families that might not be created in the traditional mold
of two married, opposite sex parents and their biological children.  Indiana also
has a statute that recognizes marriage as only between a man and a woman.122 
Additionally, the statute provides, “[o]nly a female may marry a male” and that
“[o]nly a male may marry a female.”123  Furthermore, the Indiana Code states that
Indiana will not recognize “[a] marriage between persons of the same gender . .
. even if the marriage is lawful in the place where it is solemnized.”124  Not only
does Indiana not recognize same-sex marriage at all, even couples who have a
legal same-sex marriage in another state have no legal status in Indiana.125  This
presents numerous problems for same-sex families that choose to move to
Indiana.  For example, if a same-sex couple that is legally married in a state that
recognizes same-sex marriage, such as Iowa,126 moves to Indiana, the state would
not recognize their marriage.127  Additionally, any children they might have
would need to be adopted.128  Furthermore, the couple would no longer have the
right to visit each other in the hospital, make medical decisions, gain access to the
family court system, or to any child support statutes.129  It is difficult to meet the
best interests of a child when the state of Indiana does not recognize or protect
that child’s family structure.130  

Without a clear directive from the legislature, the Indiana courts are forced

120. DOMA was passed by Congress in 1996 and was signed into law by President Clinton. 
Section 2 provides that States do not have to recognize “a relationship between persons of the same
sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe,
or a right or claim arising from such relationship,” while section 3 defines marriage as between one
man and one woman.  28 U.S.C.A. § 1738C; 1 U.S.C.A. § 7.

121. Windsor, 133 S. Ct. at 2694.
122. IND. CODE § 31-11-1-1 (2013).
123. Id. 
124. Id. 
125. See id. 
126. See Jeff Eckhoff & Grant Schulte, Unanimous Ruling:  Iowa Marriage No Longer

Limited to One Man, One Woman, DES MOINES REGISTER (Apr. 3, 2009), http://www.
desmoinesregister.com/article/20090403/NEWS/90403010, archived at http://perma.cc/KL4S-
5UKU (In 2009, Iowa became the third state to legalize same-sex marriages).

127. See In re Adoption of K.S.P., 804 N.E.2d 1253 (Ind. Ct. App. 2004) (holding that a same-
sex partner may adopt biological children of her partner).

128. Id.
129. Evan Wolfson, Protections Denied to Same Sex Couples and Their Kids, from Why

Marriage Matters:  Appendix B, FREEDOM TO MARRY http://www.freedomtomarry.org/pages/from-
why-marriage-matters-appendix-b-by-evan-wolfson, archived at http://perma.cc/5GGS-KJES.

130. IND. CODE § 31-11-1-1 (2013).



708 INDIANA LAW REVIEW [Vol. 48:695

to make important decisions about parentage based on precedent that is murky at
best.131  The legislature needs to act to protect these families and children.  The
definition of “parent” has changed dramatically over the past several decades and
the law needs to be flexible in order to accommodate these new family structures.

B.  The Substantive Due Process and Equal Protection Rights of Children
Courts routinely make decisions regarding the rights of parents in custody

cases.  As discussed previously, the concept of “biology plus,” used by the U.S.
Supreme Court in unwed father cases, confirmed a parent’s constitutional right
to be a parent on equal protection and due process grounds.132  Additionally, A.C.
v. N.J. indicates that, in Indiana, same-sex parents likely have standing to seek
custody while their actual rights remain undetermined.133  What is less defined,
and equally important, is whether children have a substantive due process or
equal protection right to maintain a relationship with a parent.  Children do have
constitutional rights, and the U.S. Supreme Court has recognized children’s rights
in several instances.134  In Wisconsin v. Yoder, the Court noted that “children are
‘persons' within the meaning of the Bill of Rights.  We have so held over and
over again.”135  Additionally, the U.S. Supreme Court has held that “neither the
Fourteenth Amendment nor the Bill of Rights is for adults alone.”136  While
courts, including the U.S. Supreme Court, have not explicitly determined the
substantive due process rights of children, these same courts have not explicitly
denied the existence of the right either.  

1.  The U.S. Supreme Court and the Substantive Due Process Rights of
Children.—In 1989, just after the Court decided the line of cases that established
the “biology plus” standard for unwed fathers, it decided the case of Michael H.
v. Gerald D.137  In this case, a married woman began having an affair with her
neighbor, became pregnant, and had a daughter.138  Eventually, the relationship
soured and the mother returned, with the child, to her husband.  The neighbor
filed an action to establish his paternity rights and allow for visitation.139 
Eventually, the husband intervened, citing California law, which presumes that
a husband cohabiting with his wife is the father of any children born of the
marriage.140  The neighbor challenged the California law as a violation of his
procedural and substantive due process rights.141  The parents, on behalf of the

131. See generally A.C. v. N.J., 1 N.E. 3d 685, 692 (Ind. Ct. App. 2013).
132. Jacobs, supra note 30, at 827. 
133. A.C. v. N.J., 1 N.E. 3d 685, 692 (Ind. Ct. App. 2013).
134. See, e.g., Wisconsin v. Yoder, 406 U.S. 205 (1972) (Douglas, J., dissenting).
135. Id. at 243.
136. In re Gault, 387 U.S. 1, 13 (1967).
137. See generally Michael H. v. Gerald D., 491 U.S. 110 (1989).
138. Id. at 113.
139. Id. at 114.
140. Id. at 116.
141. Id.



2015] PROTECTING THE RIGHTS OF CHILDREN 709

daughter, also raised a due process argument and asserted “that if she had more
than one psychological or de facto father, she was entitled to maintain her filial
relationship, with all of the attendant rights, duties, and obligations, with both.”142 

Ultimately, the Court rejected the neighbor’s procedural due process
argument, and in addressing the substantive due process argument, the Court
recognized that there is a fundamental liberty interest in preserving a father’s
relationship with a child.143  The Court took a different angle, when it said, “the
natural father's unique opportunity conflicts with the similarly unique opportunity
of the husband of the marriage; and it is not unconstitutional for the State to give
categorical preference to the latter.”144  In assessing the daughter’s substantive
due process right to a relationship with her biological father, the Court said that
it has “never had occasion to decide whether a child has a liberty interest,
symmetrical with that of her parent, in maintaining her filial relationship.  We
need not do so here because, even assuming that such a right exists, [the
daughter’s] claim must fail.”145  The Court goes on to say that even if the child
“has a liberty interest in maintaining a filial relationship with her natural father,
[the neighbor] we find that, at best, her claim is the obverse of [her natural
father’s] and fails for the same reasons.”146  While the Court in Michael H. denied
the daughter’s substantive due process claim, it did not do so because the right
did not exist.147  Rather, the Court denied the claim because recognition of the
right would acknowledge a parental relationship with two fathers and that fell
outside the norm of what the Court conceived as a traditional family
relationship.148  Instead, the Court chose not to decide whether she has the right.149 

In a more recent case, Adoptive Couple v. Baby Girl, the U.S. Supreme Court
again declined to discuss a child’s substantive due process right to maintain a
parental relationship.150  In that case, a woman discovered that she was pregnant
and after her relationship with the baby’s father, a Cherokee Indian, deteriorated
she sent him a text message asking if he would give up his parental rights.151  He
assented and the mother proceeded with the adoption process and chose an
adoptive couple from South Carolina.152  After consenting to the adoption, the
biological father challenged it in South Carolina; the South Carolina Family
Court found the adoption to be invalid.153  The South Carolina Supreme Court
affirmed, and the twenty-seven-month-old baby girl was returned to her

142. Id. at 114.
143. Id. at 122.
144. Id. at 129.
145. Id. at 130.
146. Id. at 131.
147. Id. at 128.
148. Id. at 130. 
149. Id. at 131-32.
150. See generally Adoptive Couple v. Baby Girl, 133 S. Ct. 2552 (2013).
151. Id. at 2558.
152. Id.
153. Id. at 2559.



710 INDIANA LAW REVIEW [Vol. 48:695

biological father whom she had never met, after living with the adoptive couple
for the first twenty-seven months of her life.154  On appeal, the U.S. Supreme
Court held that the adoption was valid because a Federal statute protecting Native
American children was not applicable to the biological father because he never
had “legal or physical custody” of the baby girl as of the time of the adoption
proceedings.155  That decision legitimized the adoption, and she was eventually
returned to the adoptive couple.156  

In a brief to the U.S. Supreme Court, the baby girl’s liberty interest in
maintaining a relationship with her biological father was argued on her behalf.157 
The brief stated that “foremost among these ‘intimate human relationships’ is ‘the
creation and sustenance of a family.’”158  Additionally, it was argued that children
as well as adults have a liberty interest in preserving their familial relationships.159 
Similar to Michael H, the majority did not make a decision regarding the baby
girl’s liberty interest in maintaining a relationship with her biological father. 
Although, Justice Sotomayor recognized in her dissent that biological fathers
have an interest in forming a relationship with their children and that “children
have a reciprocal interest in knowing their biological parents.”160  This notion of
a “reciprocal right” for children, cited by Justice Sotomayor, originated in another
U.S. Supreme Court case, Santosky v. Kramer.161

Santosky v. Kramer was decided in 1982 and involved a challenge to a New
York statute that allowed for the termination of parental rights if the state finds
that child is “permanently neglected.”162  In Santosky, the state permanently
removed three children from their parents due to “incidents reflecting parental
neglect.”163  The parents challenged the removal of their children as a violation
of their due process rights.164  The Court held that the parents’ due process rights
were violated and that before a state can remove children from their parents, there
needs to be a showing of clear and convincing evidence of neglect.165  In coming
to this decision, the Court stated that “the child and his parents share a vital
interest in preventing erroneous termination of their natural relationship” and that

154. Id.
155. Id. at 2562.  
156. South Carolina Drops Extradition Request for Baby Veronica's Father, ASSOCIATED

PRESS (Oct. 2, 2013, 9:26 PM), http://www.cbsnews.com/8301-201_162-57605799/south-carolina-
drops-extradition-request-for-baby-veronicas-father/, archived at http://perma.cc/7WAN-VMXY.

157. Brief for Guardian Ad Litem, as Representative of Respondent Baby Girl at 56, Adoptive
Couple v.  Baby Girl, 133 S. Ct. 2553 (2013) (No. 12-399) (quoting Roberts v. U.S. Jaycees, 468
U.S. 609, 617-19 (1984)).

158. Id.
159. See generally id.
160. Adoptive Couple, 133 S. Ct. at 2582.
161. Id.
162. Santosky v. Kramer, 455 U.S. 745, 747 (1982).
163. Id. at 750.
164. Id.
165. See generally id. at 747-48.



2015] PROTECTING THE RIGHTS OF CHILDREN 711

“the interests of the child and his natural parents coincide.”166  The Court also
noted that this loss is “far-reaching” and extends to the loss of support,
maintenance, and inheritance.167  Here, the U.S. Supreme Court acknowledged the
reciprocal rights that children have to a relationship with their parents.168  

Finally, in Roe v. Conn, a case decided by the District Court of Alabama, the
court stated that the Constitution recognizes a “fundamental right to family
integrity.”169  In this case, a child was removed from his mother’s home without
notice or a hearing.170  The action was premised on an Alabama statute that
allowed for the summary removal of a child if a juvenile court judge believed
removal was necessary for the child’s welfare.171  The mother and child
challenged the statute and the District Court concluded that because of the
existence of a fundamental right to family integrity, the “state’s severance of [the
mother’s] parent-child relationship and of [the child’s] child-parent relationship
will receive strict judicial scrutiny.”172  In applying the strict scrutiny standard to
the Alabama statute, the court in this case held that the statute was
unconstitutional.173  This case demonstrates a court’s willingness to recognize a
fundamental right that both children and parents have to preserve their “family
integrity” and to apply the strict scrutiny standard when assessing that right.174 
Children of same-sex parents have the same right to preserve their “family
integrity.”  

While the substantive due process rights of children to maintain their family
relationships have yet to be fully defined, judicial precedent has not foreclosed
the possibility.  Courts have recognized that children have rights under the
Constitution and those rights include a right to “family integrity.”175 
Additionally, this right will most likely receive strict scrutiny.176  If this right is
to be protected in Indiana, then the legislature must enact laws that protect the
right to “family integrity” for children of same-sex parents.

2.  Children, as Well as Adults, Deserve Equal Protection Under the
Laws.—In addition to a potential substantive due process argument, there is also
an equal protection argument for children of same-sex parents.177  An analogy can
be drawn between the protections that were denied non-marital children and the

166. Id. at 760-61.
167. Id. at 760-61 n.11.
168. See generally id. at 745. 
169. Roe v. Conn, 417 F. Supp. 769, 778 (1976).
170. Id. at 773.
171. Id.
172. Id. at 777.
173. Id.
174. See generally id.
175. Id. at 778.
176. Id. at 777.
177. See Catherine E. Smith, Equal Protection for Children of Same-Sex Parents, 90 WASH.

U.L. REV. 1589, 1608 (2013).



712 INDIANA LAW REVIEW [Vol. 48:695

current state of children of same-sex parents.178  Historically, non-marital children
were considered to be “filius nillius” or the “child of nobody” at common law.179 
This idea resulted in children who were not only social outcasts, but also denied
benefits of the state, such as inheritance or financial support from their parents.180 
In Levy v. Louisiana, this doctrine was challenged, and it was the first time that
the U.S. Supreme Court heard an equal protection case involving children.181  In
this case, five non-marital children were denied the “right to recover” from their
mother’s death because “morals and general welfare . . . discourages bringing
children into the world out of wedlock.”182  The Unites States Supreme Court
overturned the Louisiana ruling saying that “it is invidious to discriminate against
[the children] when no action, conduct, or demeanor of theirs is possibly
relevant.”183  

In 1972, the U.S. Supreme Court heard another Louisiana case in which the
rights of non-marital children were again at issue.184  This case, Weber v. Aetna
Casualty & Surety Co., is perhaps one of the most well known cases involving the
rights of non-marital children.185  This case concerned the rights of a man’s non-
marital children to recover workmen’s compensation benefits after he was killed
at work.186  The non-marital children were denied access to the benefits under
Louisiana law, whereas his legitimate children were able to recover.187  The Court
concluded that Levy applied and that on equal protection grounds the children
could not be denied access to the benefit.188  It is now well settled that “the
government may not treat children born outside of a marriage differently than
those born within one.”189  

Children of same-sex marriages can be considered a subset of non-marital
children and therefore are entitled to equal protection.190  Both of these sets of
children have no control over their status as non-marital or of being born into a
same-sex family, and they also have no control over the decisions made by their
parents.191  Additionally, these children suffer economic consequences by being
denied state benefits, social security, and disability benefits.192 

Certain state economic benefits flow to children from their parents and are

178. Id.
179. Id. 
180. Id.
181. Levy v. Louisiana, 391 U.S. 68, 70 (1968); see also Smith, supra note 177, at 1610.
182. Levy, 391 U.S. at 70.
183. Id. at 72.
184. Smith, supra note 177, at 1613.
185. Id. at 1614.
186. Weber v. Aetna Cas. & Sur. Co., 406 U.S. 164, 166 (1972).
187. Id.
188. Id. at 173.
189. Smith, supra note 177, at 1614.
190. Id. at 1615.
191. Id. at 1616.
192. Id. at 1603-08.



2015] PROTECTING THE RIGHTS OF CHILDREN 713

regulated by the states.193  In states where same-sex marriage is not recognized,
such as Indiana, children are denied these rights because in same-sex families, the
partner who is not biologically related to a child is considered a legal stranger;
they are “precluded from forming a legal relationship” with the child.194  This lack
of relationship results in certain economic inequities.195  For example, with
inheritance, when a same-sex parent dies without a will, then the intestate scheme
of a state that does not recognize same-sex marriage does not allow for the estate
to go to the deceased’s child.196  Another economic consequence is that children
of same-sex couples are often denied child support when a relationship
dissolves.197  Child support statutes typically do not extend the obligation of
support beyond legal parents.198  This “remov[es] from the child the very source
of funds that may have supported the child for a considerable period of time,
especially if the ‘non-biological’ parent was the primary wage earner in the
household.”199  In A.C. v. N.J., the non-biological partner was the primary earner
in the family, so by denying the child access to that parent, the child was also
denied the economic support of the partner.200  This deprivation ultimately
resulted in the child receiving healthcare through Medicaid.201  This goes against
one of the rationales for establishing paternity, which is to solidify financial
support for the child.202  It is generally accepted that in order to protect the public
fisc, a “biological father should shoulder some financial responsibility for his
biological child.”203  If states are interested in protecting children and the public
fisc, then it would follow that identifying parents, rather than excluding them,
would allow for this to happen more readily.204

193. These benefits include worker’s compensation, inheritance, support, and wrongful death
claims.  See Smith, supra note 177, at 1605.  The focus here is on state benefits because of the
changing nature of federal benefits for same-sex couples since the decision in United States v.
Windsor.  See United States v. Windsor, 133 S. Ct. 2675, 2681 (2013).  Currently, the federal
government extends tax, bankruptcy, Medicare, and other benefits to same-sex couples validly
married in a state that recognizes same-sex marriage.  See Matt Apuzzo, More Federal Privileges
to Extend to Same-Sex Couples, N.Y. TIMES, Feb. 8, 2014, http://www.nytimes.com/2014/
02/09/us/more-federal-privileges-to-extend-to-same-sex-couples.html, archived at
http://perma.cc/C2BY-TER8.

194. Smith, supra note 177, at 1603.
195. Id. at 1603-08.
196. Id. at 1605.
197. Id. 
198. Lewis A. Silverman, Suffer the Little Children:  Justifying Same-Sex Marriage from the

Perspective of A Child of the Union, 102 W. VA. L. REV. 411, 447 (1999).
199. Id. at 447.
200. A.C. v. N.J., 1 N.E.3d 685, 687 (Ind. Ct. App. 2013).
201. Brief for Appellant at 6, A.C. v. N.J., 1 N.E.3d 685 (Ind. Ct. App. 2013) (No. 20A04-

1301-DR-37).
202. Jacobs, supra note 30, at 845.
203. Id.
204. Id.



714 INDIANA LAW REVIEW [Vol. 48:695

Indiana’s courts are struggling to resolve these practical family issues.205 
Legislation is desperately needed in Indiana that will address these concerns and
provide a legal framework to protect all families.  A framework for this solution
already exists in the Uniform Parentage Act and in other jurisdictions.206    

IV.  THE UNIFORM PARENTAGE ACT AND APPLICATION TO INDIANA

In 1973, the Uniform Law Commission drafted the Uniform Parentage Act
(“UPA”), which confirmed that “[t]he parent and child relationship extends
equally to every child and every parent, regardless of the marital status of the
parent.”207  This original version of the UPA embraced a “broader understanding
of family” and recognized less traditional ways of creating a family.208  Fourteen
states have adopted the 1973 version of the UPA, although, not Indiana.209  In
2002, the Uniform Law Commission recognized that the UPA needed to be
amended in order to reflect the legal and scientific changes that had developed
since the 1973 version.210  This updated version of the UPA combines two other
acts that were promulgated by the American Law Institute in the decades between
the 1973 Act and the current version.211  Those Acts were the Uniform Status of
Children of Assisted Conception (1988) and the Uniform Putative and Unknown
Fathers Act (1988).212  The 2002 UPA incorporates those acts and reflects the idea
that families can be created through a variety of non-traditional means.213  The
2002 UPA focuses more on establishing the parentage of the child and leaves
issues such as custody, visitation, and support to state law.214  This 2002 amended
version of the UPA is currently law in nine states.215   When a state adopts a

205. See supra Part II.B.
206. See infra Part IV.
207. Parentage Act Summary, UNIFORM LAW COMMISSION, www.uniformlaws.

org/ActSummary.aspx?title=Parentage%20Act (last visited Oct. 12, 2014), archived at
http://perma.cc/285D-TQ8A.

208. Jason C. Beekman, Same-Sex Second-Parent Adoption and Intestacy Law:  Applying the
Sharon S. Model of "Simultaneous" Adoption to Parent-Child Provisions of the Uniform Probate
Code, 96 CORNELL L. REV. 139, 146 (2010) (“Adoption, for example, became a process to forge
a parent-child relationship outside of the traditional model.”).

209. Adopted by Alabama, California, Colorado, Illinois, Kansas, Minnesota, Montana, New
Jersey, North Dakota, Ohio, Rhode Island, Texas, and Washington.  Legislative Enactment Status: 
Parentage 1973, UNIFORM LAW COMMISSION, http://uniformlaws.org/LegislativeMap.aspx?
title=Parentage%20Act%20 (last updated Aug. 5, 2014), archived at http://perma.cc/X83P-X5P2.

210. Why States Should Adopt UPA, UNIFORM LAW COMMISSION, http://uniformlaws.org/
Narrative.aspx?title=Why%20States%20Should%20Adopt%20UPA (last visited Oct. 12, 2014),
archived at http://perma.cc/3WES-AN2T.

211. Parentage Act Summary, supra note 207.
212. Id.
213. Beekman, supra note 208, at 146.
214. Why States Should Adopt UPA, supra note 210.
215. Currently Alabama, Delaware, New Mexico, North Dakota, Oklahoma, Texas, Utah,



2015] PROTECTING THE RIGHTS OF CHILDREN 715

uniform law, such as the UPA, it is not required to adopt the entire law but can
incorporate and modify the portions that are relevant to the state.216  Indiana, then,
can adopt and modify the portions of the UPA that would be useful to address the
issues of parentage for same-sex families.  

A.  The Current Definitions in the UPA
Article 2 of the 2002 amended UPA contains definitions of the parent-child

relationship and is very comprehensive as it relates to fathers.217  Sections 201 and
204 of Article 2 contain the provisions for establishing a parent-child
relationship.218  Section 201 provides for the establishment of the mother-child
relationship and the father-child relationship separately.219  Section 201 indicates
that, in addition to adoption and adjudication, a man can establish his parent-child
relationship by an “unrebutted presumption of the man’s paternity.”220  Section
204 embodies this method of establishing paternity and provides five scenarios
in which paternity is presumed.221  These include:  when the child is born of the

Washington, and Wyoming have adopted the UPA.  See Parentage Act Summary, supra note 207.
216. See 2B SUTHERLAND STATUTORY CONSTRUCTION, CONSTRUCTION OF UNIFORM AND

MODEL STATE LAWS § 52:5 (7th ed. 2013).
217. UNIF. PARENTAGE ACT §§ 201-204 (amended 2002).
218. Id.
219.

(a)The mother-child relationship is established between a woman and a child by:  (1)
the woman’s having given birth to the child [, except as otherwise provided in [Article]
8]; (2) an adjudication of the woman’s maternity; [or] (3) adoption of the child by the
woman [; or (4) an adjudication confirming the woman as a parent of a child born to a
gestational mother if the agreement was validated under [Article] 8 or is enforceable
under other law].  (b) The father-child relationship is established between a man and a
child by:  (1) an unrebutted presumption of the man’s paternity of the child under
Section 204; (2) an effective acknowledgment of paternity by the man under [Article]
3, unless the acknowledgment has been rescinded or successfully challenged; (3) an
adjudication of the man’s paternity; (4) adoption of the child by the man; [or] (5) the
man’s having consented to assisted reproduction by  a woman under [Article] 7 which
resulted in the birth of the child [; or (6) an adjudication confirming the man as a parent
of a child born to a gestational mother if the agreement was validated under [Article]
8 or is enforceable under other law].

Id. § 201.
220. Id. § 201(b)(1).
221.

(a) A man is presumed to be the father of a child if:  (1) he and the mother of the child
are married to each other and the child is born during the marriage; (2) he and the
mother of the child were married to each other and the child is born within 300 days
after the marriage is terminated by death, annulment, declaration of invalidity, or
divorce [, or after a decree of separation]; (3) before the birth of the child, he and the
mother of the child married each other in apparent compliance with law, even if the



716 INDIANA LAW REVIEW [Vol. 48:695

marriage, when the child is born within 300 days of the termination of the
marriage, when a child is born after a marriage is, or could be declared invalid,
when a valid or invalid marriage occurs after the birth of a child, or if the father
lived with the child for the first two years of the child’s life and held himself out
as the child’s father.222  

The UPA is comprehensive when it comes to establishing paternity and is less
so when it comes to defining the mother-child relationship.223  Ostensibly, this
would seem to be because, traditionally, courts have had little difficultly defining
a mother but have frequently faced controversy-defining fathers.224  The UPA
indicates that “cases involving disputed maternity are rare” and that “the new
UPA is otherwise written in terms applicable to the determination of paternity.”225 
The UPA does leave open the possibility that a “dispute may arise” about
maternity, but that in that case “a judge . . . should have little difficulty deciding
which portions of the Act should be applied.”226  This opens the door for judges
to utilize discretion in applying the paternity provisions of the UPA to mothers
in same-sex couples.227  Section 201 allows for a woman to establish her
relationship with a child by giving birth to the child, adopting the child, or
through adjudication.228  The UPA prohibits discrimination against families with
unmarried parents, as stated in section 202:  “A child born to parents who are not
married to each other has the same rights under the law as a child born to parents
who are married to each other.”229  The UPA, however, does not specifically
prohibit discrimination against same-sex couples.230  Despite this shortcoming,
Indiana should adopt sections 201 and 204 of the UPA in a modified form that

attempted marriage is or could be declared invalid, and the child is born during the
invalid marriage or within 300 days after its termination by death, annulment,
declaration of invalidity, or divorce [, or after a decree of separation]; (4) after the birth
of the child, he and the mother of the child married each other in apparent compliance
with law, whether or not the marriage is or could be declared invalid, and he voluntarily
asserted his paternity of the child, and:  (A) the assertion is in a record filed with [state
agency maintaining birth records]; (B) he agreed to be and is named as the child’s father
on the child’s birth certificate; or (C) he promised in a record to support the child as his
own; or (5) for the first two years of the child’s life, he resided in the same household
with the child and openly held out the child as his own.  (b) A presumption of paternity
established under this section may be rebutted only by an adjudication under [Article]
6.

Id. § 204.
222. Id. 
223. Compare id. § 204, with id. § 106.
224. Id. § 106 cmt. at 10.
225. Id.
226. Id.
227. See, e.g., Elisa B. v. Superior Court, 117 P.3d 660 (Cal. 2005).
228. UNIF. PARENTAGE ACT § 201(a) (amended 2002).
229. Id. § 202.
230. Id. 



2015] PROTECTING THE RIGHTS OF CHILDREN 717

would expand the mother-child relationship provisions to include the variety of
ways the UPA identifies the father-child relationship.  By doing so, Indiana courts
could easily apply this Indiana Uniform Parentage Act, or INUPA, to same-sex
families.  

B.  Adopting the UPA in Indiana and Applying it to Indiana’s
Same-Sex Families

Indiana recently began to recognize same-sex marriages.231  While this would
alleviate parentage issues for those same-sex couples in Indiana who are married,
not all same-sex couples in Indiana are currently married nor is it clear how the
current Indiana code would apply to a same-sex family.  Therefore, it is still
important for Indiana to ensure that the current laws are meeting the needs of
Indiana’s diverse families.  Indiana should adopt sections 201 and 204 of the
UPA for mothers as well for fathers,232 as the INUPA, in order to fill the gaps in
Indiana law that the courts have identified.233  This would allow for section 201
to expand, establishing a mother-child relationship through “an unrebutted
presumption of the [woman’s maternity] of the child under [s]ection 204.”234 
Then, section 204, which provides for presumptions of paternity, would establish
a presumption of maternity under INUPA.235  Allowing for the presumption of
both mothers and fathers would permit partners of same-sex couples, of either
gender, to establish their parentage of a child.236  Section 204(a)(5) of INUPA
would be the most useful provision for unmarried same-sex partners who relocate
to Indiana or where one partner did not adopt the child, such as in A.C. v. N.J.237 
This new INUPA section would allow for a presumption of [maternity] if “for the
first two years of the child’s life, [she] resided in the same household with the
child and openly held out the child as [her] own.”238  In practice, Indiana courts
could apply this new section of INUPA to a same-sex family who moves to
Indiana and is not married.  This provision would allow for a partner who may be
excluded under Indiana law to establish parentage of a child without having to go
through the adoption process.239  As long as the person could show that he or she
held the child out as his or her own and lived with the child for longer than two

231. See Baskin v. Bogan, 766 F. 3d 648 (7th Cir. 2014), cert denied, 135 S. Ct. 316 (2014). 
232. See Maggie Manternach, Where Is My Other Mommy?:  Applying the Presumed Father

Provision of the Uniform Parentage Act to Recognize the Rights of Lesbian Mothers and Their
Children, 9 J. GENDER, RACE, & JUST. 385, 387 (2005).

233. See In re Paternity of Infant T., 99 N.E.2d 843, 843 (Ind. 2013), trans. denied (Rush, J.,
dissenting); A.C. v. N.J., 1 N.E.3d 685, 692 (Ind. Ct. App. 2013). 

234. UNIF. PARENTAGE ACT § 201 (amended 2002).
235. See id. § 204.
236. See Manternach, supra note 232, at 417.
237. See A.C., 1 N.E.3d at 685.
238. UNIF. PARENTAGE ACT § 204 (amended 2002). 
239. See id.



718 INDIANA LAW REVIEW [Vol. 48:695

years, then that parent would have established a parent-child relationship.240  This
provision would have allowed the partner in A.C. v. N.J. to assert her parentage.241 
The biological mother and partner lived together as a family for two years, and
the partner held her herself out as the child’s mother.242  The partner provided
financially for the child and was even listed as the emergency contact on a school
form.243  It appears that she would easily meet the two requirements of holding
the child out as her own and living with the child for the first two years of the
child’s life, thus establishing parentage under the newly created INUPA.244  

Section 204(a)(4) of INUPA would also permit a voluntary assertion of
paternity or maternity after a child is born, whether there is an invalid or valid
marriage.245  This voluntary assertion would be “in a record filed with [the
Indiana Department of Health],” “on the child’s birth certificate,” or if “he [or
she] promised in a record to support the child as his [or her] own.”246  This would
permit partners in a same-sex couple to assert their parentage without having to
hold the child out as their own for two years.247  Under this provision of INUPA,
the partner in A.C. v. N.J. could have established herself as a presumed parent
because she could assert her parentage by “promis[ing] in a record to support the
child as her own.”248  The partner and biological mother had agreed to raise the
child together and that the partner would be the child’s “second parent.”249 
Although the agreement was not memorialized in a record, as the INUPA would
require, if it was, the partner could have established her parentage because the
biological mother did “not dispute that she agreed to raise [c]hild with
[p]artner.”250  Additionally, the partner took on financial responsibility for the
child and provided support.251  If the INUPA were available to the partner, she
simply could have established in a record that they agreed that “she would always
be [the child’s] mom”252 and thus confirming her parentage of the child.253  This
would create another path for same-sex partners to establish parentage.  

To ensure that Indiana’s laws protect all children, Indiana should adopt

240. In Indiana, courts have held that a same-sex couples can adopt under Indiana’s Adoption
Act.  IND. CODE §§ 31-19-2-2(a), 31-19-2-4 (2013); see also In re Infant Girl W., 845 N.E.2d 229
(Ind. Ct. App. 2006).

241. See A.C., 1 N.E.3d at 687.
242. Id.
243. Id.
244. See UNIF. PARENTAGE ACT § 204(a)(4) (amended 2002).
245. See id. § 204(a)(4). 
246. See id. § 204(a)(4)(A)-(C). 
247. Id.
248. A.C, 1 N.E.3d at 685.
249. Id. at 689. 
250. Id.
251. Brief for Appellant at 4, A.C. v. N.J., 1 N.E.3d 685 (Ind. Ct. App. 2013) (No. 20A04-

1301-DR-37).
252. Id. 
253. UNIF. PARENTAGE ACT § 204(a)(4)(C) (amended 2002).



2015] PROTECTING THE RIGHTS OF CHILDREN 719

Sections 201 and 204 of the UPA, for both mothers and fathers, as the INUPA.254 
This would allow for the same level of recognition of a mother that exists in the
current UPA for a father and would provide a way for Indiana law to recognize
same-sex parents, such as the partner in A.C. v. N.J.255

C.  Application of the UPA to Same-Sex Custody Disputes
Despite the UPA’s shortcomings, other jurisdictions that have adopted the

UPA have applied it to same-sex parentage.256  California is one of those
jurisdictions.  California adopted the 1973 version of the UPA257 and codified it
as Part 3 of Division 12 covering parent and child relationships.258  By adopting
the UPA, California has been able to resolve same-sex custody issues.  In Elisa
B. v. Superior Court, the California Supreme Court heard a case involving a
same-sex couple who exchanged rings, held each other out as each other’s
partner, and felt as if they were in a committed relationship.259  Four years later,
they decided to have children together, and because both of them wanted to carry
a child, they were both inseminated with the same sperm so that their children
would be half siblings.260  One partner gave birth to a son, while the other gave
birth to twins.261  It was decided that the partner who birthed the son would return
to work while the other partner would stay home with the three children.262  Both
partners shared parenting duties for all three of the children.263  After a few years,
their relationship deteriorated, and they separated.264  The working partner agreed
to provide support to the stay-at-home partner and the twins.265  The working
partner then lost her job and sought to discontinue paying the support
payments.266  

The California Supreme Court found that the working mother had to continue
paying the support payments because she could be considered the mother of the
children and there is “no reason why both parents of a child cannot be women.”267 
In doing this, the California Supreme Court applied several sections of the UPA

254. See id. §§ 201, 204.
255. See id.
256. See, e.g., Parentage Act (1973), UNIFORM LAW COMMISSION, http://www.uniformlaws.

org/Act.aspx?title=Parentage%20Act%20 (last visited Oct. 12, 2014), archived at http://perma.cc/
N8VV-6PLS.

257. Id.
258. CAL. FAM. CODE § 7600 et seq. (West 2013).
259. Elisa B. v. Superior Court, 33 Cal. Rptr. 3d 46, 48 (Cal. 2005).
260. Id. 
261. Id.
262. Id.
263. Id.
264. Id.
265. Id.
266. Id. at 48-50.
267. Id. at 52-53.



720 INDIANA LAW REVIEW [Vol. 48:695

to same-sex couples.268  First, the court stated that section 2 of the UPA indicates
that a parent-child relationship can exist regardless of the marital status of the
parents.269  Even though the twins’ mothers were not married, a parent child
relationship could exist.270  The court then used section 4(a) of the California
Family Code, which is similar to section 204, and outlines several scenarios when
a man could be considered the natural father of a child.271  These scenarios
include receiving the child into the home and holding the child out as his own.272 
The court interpreted that these provisions establishing paternity could also be
used to establish maternity “insofar as practicable.”273  The court also said that
even “[t]hough most of the decisional law has focused on the definition of the
presumed father, the legal principles concerning the presumed father apply
equally to a woman seeking presumed mother status.”274  Using these portions of
the UPA which California had adopted into their Family Code, the court finally
concluded that the working mother could be considered the mother of the twins
who were not biologically related to her because she brought them into her home
and held them out as her own.275  Additionally, the court considered the effect that
its holding would have if it concluded that the working mother was not the legal
mother of the twins.276  It concluded that this outcome would leave the children
with only one parent.277  The court interpreted the intent of the California
Legislature as “implicitly recogniz[ing] the value of having two parents, rather
than one, as a source of both emotional and financial support, especially when the
obligation to support the child would otherwise fall to the public.”278

If Indiana prefers a two-parent household, as it claims in the Parenting Time
Guidelines “[a] young child thrives when both parents take an active role in
parenting,”279 then Indiana must be prepared to recognize different types of
parents.  Adopting an Indiana version of the UPA, or INUPA, will go a long way
toward Indiana having a Family Code that is “clear, concise and easy to interpret

268. Id at 50-53.
269. Id. at 51-52; see CAL. FAM. CODE § 7602 (West 2013).
270. At the time of this decision, California was not recognizing same-sex marriages.  See

Hollingsworth v. Perry 133 S. Ct. 2652, 2668 (2013) (holding that after California officials declined
to defend a ballot initiative defining marriage as between one man and one woman in the California
Constitution, petitioners did not have standing to challenge a district court ruling that the ballot
initiative was unconstitutional).

271. Elisa B., 33 Cal. Rptr.3d at 50-52; see FAM. § 7611.
272. Elisa B., 33 Cal. Rptr.3d at 50-51; see FAM. § 7611 
273. Elisa B., 117 P.3d at 50-55 (citing In re Salvador M., 4 Cal. Rptr.3d 705 (Cal. Ct. App.

2003)).  
274. Id. at 53-55.
275. Id. at 54-57.
276. Id. at 56-57.
277. Id.
278. Id.
279. IND. CT. R. APPENDIX tit. 34 § II (2013) (Ind. Parenting Time Guidelines).



2015] PROTECTING THE RIGHTS OF CHILDREN 721

and apply.”280  This would allow the Indiana legislature to fulfill Judge
Friedlander and Justice Rush’s requests for guidance in this murky area of the
law,281 and would ultimately benefit all the children of Indiana equally.282

CONCLUSION

Indiana courts are struggling to resolve matters relating to same-sex families
in Indiana.283  The recent Indiana Court of Appeals decision in A.C. v. N.J.
indicates that Indiana family law is not providing protection for all of Indiana’s
families.284  This is also an area where the Indiana courts, specifically Justice
Rush and Judge Friedlander, have asked the Indiana legislature for guidance.285 
The Indiana General Assembly has not yet heeded this call.  Traditionally,
identifying the parentage of a child was a straightforward matter under the
“marital presumption.”286  This doctrine identified the parents of a child as a
mother and her husband.287  This efficient definition was useful because children
were largely thought of as property and were needed for labor.288  While this
might have been a useful way of identifying parents, families look different than
they did when family laws were first being enacted.289  This change in family
roles from a largely economic one to a relationship-based role is reflected in the
U.S. Supreme Court’s decision in the “biology plus” cases.290  These cases
illustrate that biology is often not enough to establish a father-child relationship,
but a father must also demonstrate a “full commitment to the responsibilities of
parenthood.”291  Despite this definition, the Court has not yet decided a case that
expressly defines the rights of a same-sex parent, so the states are free to define
that relationship. 

Indiana’s current laws do not provide a workable definition of parentage for
unmarried same-sex families and Indiana's case law further confirms this point. 
In cases such as A.C. v. N.J. and In re A.B., Indiana courts have struggled to
define the rights of same-sex parents.292  After these cases, it appears same-sex

280. IND. CODE § 31-10-1-1 (2013).
281. See In re Paternity of Infant T., 99 N.E.2d 843,843 (Ind. 2013), trans. denied (Rush, J.,

dissenting); A.C. v. N.J., 1 N.E.3d 685, 692 (Ind. Ct. App. 2013).
282. See A.C., 1 N.E.3d at 685.
283. See Part II.B.
284. See In re Paternity of Infant T., 99 N.E.2d at 843; A.C., 1 N.E.3d at 692.
285. See In re Paternity of Infant T., 99 N.E.2d at 843; A.C., 1 N.E.3d at 692. 
286. Murphy, supra note 14, at 326.
287. Id.
288. Id.
289. Assisted Reproductive Technology: Most Recent ART Data, CENTERS FOR DISEASE

CONTROL AND PREVENTION, http://www.cdc.gov/ART (last visited July10, 2014), archived at
http://perma.cc/M766-RKEE.

290. Jacobs, supra note 30, at 827.
291. Lehr v. Robertson, 463 U.S. 248, 261 (1983).
292. See A.C. v. N.J., 1 N.E.3d 685 (Ind. Ct. App. 2013); In re A.B., 818 N.E.2d 126 (Ind. Ct.



722 INDIANA LAW REVIEW [Vol. 48:695

parents at least have standing to assert their parental right, but any rights beyond
that remain unclear.293  Research shows that the presence of same-sex families is
not something that will decrease; in fact, it will most likely increase as more and
more states, and now the federal government, recognize same-sex marriage.294 
As same-sex partners increasingly create families, there are no laws in Indiana
that apply to them, and, ultimately, protect them.295  Without a clear directive
from the legislature, Indiana courts are left to make these decisions on their
own.296  Children have rights under the Constitution and have a legitimate
substantive due process and equal protection argument to preserving their
relationship with a same-sex parent.  In order to protect children’s substantive due
process right to “family integrity” and to provide equal protection under the law,
Indiana should adopt a modified version of the Uniform Parentage Act (“UPA”). 

Indiana should specifically adopt sections 201 and 204 of the UPA, as the
Indiana Uniform Parentage Act (“INUPA”).297  The INUPA would include a
modified version of section 201 and 204 that would expand the presumptions of
paternity to mothers and establish presumptions of maternity.  Incorporating these
portions of the UPA as the INUPA would allow for Indiana courts to more readily
identify parents in a same-sex family.  Same-sex parents could then be presumed
to be a parent by holding themselves out as a parent for two years or by
voluntarily acknowledging their parentage of a child.  This would fill the gap in
Indiana law as identified by courts and protect all of Indiana’s children and
families.

App. 2004), vacated by King v. S.B., 837 N.E.2d 965 (Ind. 2005).
293. See A.C., 1 N.E.3d at 685.
294. Richard Socarides, The Growing Impact of the Supreme Court’s Gay-Marriage Ruling,

NEW YORKER (Jan. 27, 2014), http://www.newyorker.com/online/blogs/newsdesk/2014/01/the-
widening-impact-of-the-supreme-courts-gay-marriage-ruling.html, archived at http://perma.cc/
3JDN-7HG3.

295. A.C., 1 N.E.3d at 692.
296. Id. at 693.
297. See UNIF. PARENTAGE ACT §§ 201, 204 (amended 2002).