A husband and wife who had their embryo implanted into a surrogate, who then gave birth to their child, moved one step closer to getting the wife named the legal mother rather than the surrogate.

The Indiana Court of Appeals on Wednesday reversed a Porter Circuit Court decision that denied the husband and wife's petition to establish maternity on behalf of the wife, who they say is the biological mother even though a different woman gave birth. The woman who carried the child, the wife's sister, supports the wife's petition to be named mother.

The appeals court, in reversing the Porter County court's decision, ordered the Porter County court to conduct an evidentiary hearing.

"Assuming that (the wife) is shown by clear and convincing evidence to be the biological mother of (the baby), (the court should) grant all other relief just and proper under the circumstances," the appeals court wrote.

The baby, who was born in February 2009, was established as the husband's child. But in May 2009, the Porter County court denied the petition to establish the wife as mother.

"The court finds that Indiana law does not permit a non birth mother to establish maternity. Indiana law holds the birth mother is the legal maternal mother," wrote the Porter County court.

The husband and wife, in summarizing their brief to the appeals court, contested that opinion.

"Indiana law expressly permits a man to establish that he is the father of a child. It has no corresponding mechanism to allow a woman to show that she is the child's mother," stated the summary.

"To hold that the absence of the ability to statutorily establish maternity means that it cannot be done is to deny equal protection under the law to women in general, and biological mothers in particular, who, because of nature's cruelty, are deprived of the ability to conceive and carry a child."

The appeals court wrote that reproductive technologies now exist that were not contemplated when the state Legislature originally provided for the establishment of legal parentage.

"Now, however, reproductive technologies have advanced to provide for gestational surrogacy, where an egg from the biological mother is artificially inseminated with the sperm of the father and implanted into a host womb for incubation until birth. The state of Indiana asserts that equitable relief may be afforded in these particular circumstances," the appeals court wrote.

"We are aware of no reason why the public interest in correctly identifying a child's biological mother should be less compelling than correctly identifying a child's biological father."