FOR PUBLICATION


ATTORNEY FOR APPELLANT:    ATTORNEYS FOR APPELLEE:

SEAN C. LEMIEUX     KENDRA GOWDY GJERDINGEN
Fishers, Indiana     ANDREW C. MALLOR
            Mallor Clendening Grodner & Bohrer, LLP
Bloomington, Indiana
            
            

IN RE: The Parentage of A.B.,                 )

                                                   )
DAWN KING on her own behalf and as next friend     )
Of A.B., a minor,                                  )
                                                   )
Appellant-Petitioner,                              )
                                                   )
vs.                                                )    No.  53A01-0407-JV-284  
                                                   )
S.B.,                                              )
                                                   )
Appellee-Respondent.                               )

    There are omens that the law related to parentage in the context of assisted conception and gay-lesbian relationships is in the early stages of development, at least in this state.

    The State of Indiana has recognized four sources of parentage: heterosexual marriages and biological paternity, the limited circumstance of children conceived by artificial fertilization within a marital relationship with the assistance of an anonymous semen donor (Levin v. Levin, [645 N.E.2d 601 (Ind. 1994)]), and adoption.

    Only adoption has provided a vehicle by which gay-lesbian couples in Indiana who wish to co-parent children may avoid public policy issues and biologically-related sub-issues related to same-sex relationships. For reasons not known to the Court, Dawn did not pursue to conclusion her petition to adopt A.B. in the four years which elapsed between A.B.’s birth and the date the parties separated.

    Dawn’s claim could be granted only if the Court were to create by its order a relationship for which there is no statutory or judicial authority in the State of Indiana. It is not within the province of the trial court to do so.

Levin v. Levin, 645 N.E.2d at 604-05 (citations and footnote omitted). Thus, the court found Donald “legally responsible for the child.” Id. at 603-04.
    While Levin v. Levin was certainly presented in the context of a marriage, the supreme court’s analysis as set forth above does not expressly hinge on the marital status of the parties and is equally applicable to the case at hand. Moreover, we agree with Dawn that “no [legitimate] reason exists to provide the children born to lesbian parents through the use of reproductive technology with less security and protection than that given to children born to heterosexual parents through artificial insemination.” Appellant’s Brief at 11. As we have recently observed in the context of same-sex adoptions, we cannot close our eyes to the legal and social needs of our society; the strength and genius of the common law lies in its ability to adapt to the changing needs of the society it governs. Adoption of K.S.P., 804 N.E.2d 1253 (Ind. Ct. App. 2004) (citing Adoption of M.M.G.C., 785 N.E.2d 267 (Ind. Ct. App. 2003)).
“[O]ur paramount concern should be with the effect of our laws on the reality of children’s lives. It is not the courts that have engendered the diverse composition of today’s families. It is the advancement of reproductive technologies and society’s recognition of alternative lifestyles that have produced families in which a biological, and therefore a legal, connection is no longer the sole organizing principle. But it is the courts that are required to define, declare and protect the rights of children raised in these families, usually upon their dissolution. At that point, courts are left to vindicate the public interest in the children’s financial support and emotional well-being by developing theories of parenthood, so that “legal strangers” who are de facto parents may be awarded custody or visitation or reached for support. Case law and commentary on the subject detail the years of litigation spent in settling these difficult issues while the children remain in limbo, sometimes denied the affection of a “parent” who has been with them from birth.”

Adoption of K.S.P., 804 N.E.2d at 1259 (quoting Adoptions of B.L.V.B. & E.L.V.B., 160 Vt. 368, 376, 628 A.2d 1271, 1276 (1993)).
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. See footnote Until the legislature enters this arena, however, we are left to fashion the common law to define, declare, and protect the rights of these children. See Ind. Const. art. I, § 12 (providing in part, “[a]ll courts shall be open; and every person, for injury done to him…shall have remedy by due course of law”). We, therefore, hold 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.
    Assuming the facts alleged in the complaint to be true, as we must at this stage, it is apparent that A.B. would not have been born if Dawn and Stephanie had not agreed to be co-parents to the resulting child. Dawn, as well as her brother who acted as the semen donor, relied in good faith on Stephanie’s representations in this regard. Dawn and Stephanie, as a committed couple who could not marry, determined to bear and raise a child together. With the help of reproductive technology and the donation from Dawn’s brother, they engaged in a nontraditional procreative act and achieved their goal of having a child who is genetically related to both women. Dawn and Stephanie proceeded, as agreed and intended, to raise the child together, both financially and emotionally, and to hold A.B. out as the daughter of both women for several years. Even after the couple’s relationship ended, Dawn continued to share in the parenting of A.B., enjoying liberal visitation with A.B. and paying monthly child support for well over a year. For the first four years of A.B.’s life, Stephanie consented to and encouraged the formation of a parent-child relationship between Dawn and A.B. A bonded, dependent parent-child relationship was, in fact, established between Dawn and A.B., and A.B. has grown up knowing Dawn as her mother in the same manner that she knows Stephanie as her mother.
    Stephanie asserts, with little analysis, that establishing Dawn as a parent, over Stephanie’s objection as the child’s biological parent, would violate her constitutional right to make decisions concerning the custody and control of her daughter. We do not dispute that the Due Process Clause of the Fourteenth Amendment of the United States Constitution protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children. See Troxel v. Granville, 530 U.S. 57 (2000) (plurality); Guardianship of L.L., 745 N.E.2d 222 (Ind. Ct. App. 2001), trans. denied. In the instant case, however, we have determined that both Stephanie and Dawn are the legal parents of A.B. and stand on equal footing with respect to the child. When Stephanie agreed to bear and raise a child with Dawn and, thereafter, consented to and actively fostered a parent-child relationship between Dawn and A.B., she presumptively made decisions in the best interest of her child and effectively waived the right to unilaterally sever that relationship when her romantic relationship with Dawn ended. See footnote Cf. T.B. v. L.R.M., 567 Pa. 222, 786 A.2d 913 (2001) (observing, under similar circumstances, that biological mother’s rights do not extend to erasing a relationship between her partner and her child which she voluntarily created and actively fostered simply because after the parties’ separation she regretted having done so); Parentage of L.B., 121 Wash. App. 460, 484, 89 P.3d 271, 283 (2004) (“de facto parentage rule recognized by other states emphasizes the original consent of the legal parent to the relationship”) (emphasis in original).
    We conclude that the facts alleged in the complaint, including the reasonable inferences that can be drawn from those facts, are capable of supporting the relief sought by Dawn in her claim for declaratory judgment. Therefore, the trial court erroneously granted the motion to dismiss. We remand for further proceedings consistent with this opinion.
    Judgment reversed and remanded.
DARDEN, J., and MATHIAS, J., concur.