DeBoer, J.
In Henderson v. Box, the Seventh Circuit Court of Appeals held that Indiana’s statutory marital presumption of paternity was unconstitutional because it denied female same-sex spouses a presumption opposite-sex spouses are afforded: that a child born during the marriage is presumed to be a legitimate child, born in wedlock, and that each spouse in the union is the child’s parent. 947 F.3d 482, 488 (7th Cir. 2020), cert. denied; see also Ind. Code § 31-14-7-1(1) (“A man is presumed to be a child’s biological father if: [] the . . . man and the child’s biological mother are . . . married to each other; and [the] child is born during the marriage[.]”). At issue in this appeal is how to apply that presumption when a woman bears a child in a same-sex marriage and both her spouse and the biological father claim parentage.
Tiara Sykes and Nicole Olbera were in a same-sex relationship and wanted to have a child together. To further this goal, they introduced Demaj Baker into their relationship, and for a while both women had consensual sexual relationships with Baker. Olbera eventually became pregnant, and she and Sykes married a few weeks before she gave birth to N.O.-B. Eventually the women separated, and Sykes filed a petition for dissolution of marriage alleging that N.O.-B. was a child of the marriage. Baker then filed a petition to establish paternity with respect to N.O.-B.
Following numerous interim proceedings in the dissolution and paternity causes, the trial court effectively ruled that Henderson compelled a conclusion that Sykes was N.O.-B.’s legal parent and Baker was not. As a result, it dismissed Baker’s petition to establish paternity and entered a decree of dissolution awarding Olbera sole legal and primary physical custody of N.O.- B., subject to Sykes’ parenting time. Olbera and Baker now jointly appeal and argue, among other things, that the court clearly erred in granting Sykes legal parentage because Baker rebutted the marital presumption. Because we agree with their argument, we reverse and remand.
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We begin our review with the paternity court’s decision to dismiss Baker’s petition to establish paternity. The court gave alternative procedural and substantive reasons for its dismissal. Procedurally, the court found that Baker’s petition was time-barred because he failed to file it within two years of N.O.- B.’s birth and did not meet any of the statutory exceptions for late filing. In relevant part, Indiana Code section 31-14-5-3(b) states:
The mother, a man alleging to be the child’s father, or the department or its agents must file a paternity action not later than two [] years after the child is born, unless:
(1) both the mother and the alleged father waive the limitation on actions and file jointly;
(2) support has been furnished by the alleged father or by a person acting on his behalf, either voluntarily or under an agreement with:
(A) the mother;
(B) a person acting on the mother’s behalf; or
(C) a person acting on the child’s behalf;
. . .
(4) the alleged father files a petition after the mother has acknowledged in writing that he is the child’s biological father[.]
“The statute of limitation[s] for paternity actions is not jurisdictional.” Drake v. McKinney, 717 N.E.2d 1229, 1231 (Ind. Ct. App. 1999). The two-year limitation bars the remedy rather than the action itself, and “must be pleaded and proven as an affirmative defense.” In re Paternity of K.H., 709 N.E.2d 1033, 1035 (Ind. Ct. App. 1999). The party asserting the statute of limitations must first prove “the suit was commenced beyond the statutory time allowed[,]” then the “party who relies on facts in avoidance of a statute of limitations has the burden of proving those facts.” Id.
Although Sykes was not an original party to the paternity case, she intervened in June 2024, and we find nothing in the record indicating that she ever raised that Baker was barred from establishing paternity because he filed outside the two-year window. Thus, the court erred in sua sponte invoking the two-year limitation to dismiss Baker’s petition because Baker was never put on notice that he was expected to prove the facts necessary to avoid the statute of limitations.
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Substantively, the trial court also found that Baker’s claim to legal parentage failed on the merits because a “child [] born to same[-]sex parents is [] a legitimate child, born in wedlock, and both wives are identified as parents.” Appellant’s App. Vol. 2 at 92. On appeal, Olbera and Baker argue that the court’s ruling misapplied Henderson, not because the court recognized that Sykes was afforded the marital presumption of parentage, but because it failed to find that Baker rebutted that presumption.
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The presumption that a child born during marriage is a legitimate child of the marriage “is one of the strongest known to the law[.]” H.W.K. v. M.A.G., 426 N.E.2d 129, 131 (Ind. Ct. App. 1981). This marital presumption is codified as Indiana Code section 31-14-7-1(1), which reads:
A man is presumed to be a child’s biological father if:
(1) the:
(A) man and the child’s biological mother are or have been married to each other; and
(B) child is born during the marriage or not later than three hundred (300) days after the marriage is terminated by death, annulment, or dissolution[.]
Along these lines, a child is considered a “[c]hild born in wedlock” if he is born to a woman and “a man who is presumed to be the child’s father under [section 31-14-7-1(1)] unless the presumption is rebutted.” I.C. § 31-9-2-15. Conversely, when a child is born to parents to whom the marital presumption does not apply, he is considered a “[c]hild born out of wedlock.” I.C. § 31-9-2-16.
These statutes reflect the public policy that “stability and finality are significant objectives to be served when deciding the status of children of divorce.” In re Paternity of S.R.I., 602 N.E.2d 1014, 1016 (Ind. 1992). But Indiana also has “a substantial public policy in correctly identifying parents and their offspring.” Id. Accurate identification of parents is in the best interests of children for medical, psychological, and financial reasons, and plays an important role in the determination of child support. Id. (noting “public policy disfavors a support order against a man who is not the child’s father”).
With this background in mind, we turn to the Seventh Circuit’s consideration of Indiana’s marital presumption in Henderson. There, a group of plaintiffs comprised of eight female, same-sex married couples sought “injunctive relief to list both the birth mother and her same-sex spouse on their children’s birth certificates and to have their children recognized as children born in wedlock.” Henderson v. Adams, 209 F.Supp.3d 1059, 1063 (S.D. Ind. 2016). Each of those couples had “agreed to have children together and conceived through various forms of assisted reproduction, using sperm from third-party donors.” Id. at 1066. In each case, the State declined to list both spouses on the child’s birth certificate and informed the couples that the non-birth mother could be recognized as the child’s legal parent only after formal adoption proceedings. Id. In support of their request for injunctive relief, the couples argued that the three Indiana statutes discussed above (the marital presumption and the statutes defining a child as born in or out of wedlock) operated to treat women in female-female marriages differently than individuals in opposite-sex marriages. Id. at 1068.
The district court agreed with the plaintiffs and issued an injunction “requiring Indiana to treat children born into female-female marriages as having two female parents, who . . . must be listed on the birth certificate.” Henderson, 947 F.3d at 484. Simply put, the district court concluded that Indiana “must treat a wife as a parent even if she did not provide an egg.” Id. In coming to this conclusion, it found that sections 31-9-2-15, -16, and 31-14-7-1 worked together to unconstitutionally discriminate against same-sex couples under the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Id.
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On appeal, the State argued that the statutory scheme did not discriminate against women in same-sex marriages because the requirement that the biological father be identified on a birth certificate applied without exception; in other words, the presumption of parentage would be overcome in any case where a married woman gave birth as “a result of in vitro fertilization using donated sperm, or of sexual relations outside marriage[.]” Henderson, 947 F.3d at 485. At the time, Indiana required new mothers to list the child’s “father” on a birth worksheet. Id. To the State, this meant “biological father,” and was intended to produce a record of biological parentage. Id. Thus, the product of the birth worksheet was an original birth certificate identifying the child’s biological parentage. Id. And according to the State, it was this record of biological parentage—not the marital presumption—that carried legal significance because “[a] husband does not have any legal rights or duties unless he is the biological father.” Id. at 486. So, the State claimed, “[o]nly following an adoption” would it be proper to issue a subsequent birth certificate identifying the nonbiological but legal parent. Id. at 485.
The Seventh Circuit disagreed with the State’s claim that the marital presumption under section 31-14-7-1(1) carries no legal significance. Writing for the unanimous court, Judge Easterbrook reasoned that “[u]nless the presumption is contested, the husband is deemed the father too, with parental rights and parental duties, in a way that both women in a female-female marriage are not.” Id. at 486 (citing Indiana case law showing “the statutory presumption has real force”). The Seventh Circuit held that “after Obergefell and Pavan, a state cannot presume that a husband is the father of a child born in wedlock, while denying an equivalent presumption to parents in same-sex marriages. Because Ind. Code § 31-14-7-1(1) does that, its operation was properly enjoined.” Id. at 487. Accordingly, the Seventh Circuit affirmed the district court’s order requiring Indiana to recognize the children of the married, female, same-sex couple plaintiffs “as legitimate children, born in wedlock, and to identify both wives in each union as parents[.]” Id. at 488.
However, the Seventh Circuit found that some parts of the district court’s remedy were broader than legally justified and required revision. Id. at 487. It observed that the district court “appear[ed] to turn a presumption of parentage into a rule of parentage, so that in a same-sex marriage the birth certificate must list ‘Mother #1’ and ‘Mother #2’ even if, say, the birth mother conceives through sexual relations with a man and freely acknowledges the child’s biological parentage.” Id. (emphasis in original). Judge Easterbrook explained that “[t]here’s no constitutional reason why a presumption that can be defeated for men can’t be defeated for women too.” Id.
Since Henderson in 2020, our Legislature has not amended section 31-14-7-1 or sections 31-9-2-15 and -16 to bring them into compliance with the constitution. Nevertheless, it is apparent to us that the marital presumption of parentage (biological fatherhood under the terms of the statute and in the case of opposite sex couples) must be afforded to women in same-sex marriages.
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In this case, Olbera gave birth to N.O.-B. while she was married to Sykes. We needn’t look any further to conclude that the law required that Sykes be afforded the marital presumption of parentage. Next, we examine whether Baker successfully rebutted that presumption.
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Though the trial court properly recognized that the marital presumption applied here, it appears to have committed the same error as the district court in Henderson by treating it as a rule of parentage rather than a rebuttable presumption. “[T]he guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to [another.]” Students for Fair Admissions, Inc. v. President and Fellows of Harvard Coll., 600 U.S. 181, 206 (2023) (quoting Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 289-90 (1978)); see also Henderson, 947 F.3d at 487 (“There’s no constitutional reason why a presumption that can be defeated for men can’t be defeated for women too.”). Consequently, just as it is in opposite-sex marriages, the marital presumption of parentage is rebuttable when a child is born into a female-female marriage.
Indiana has long held that the marital presumption can only be rebutted “by direct, clear, and convincing evidence.” Myers v. Myers, 13 N.E.3d 478, 482 (Ind. Ct. App. 2014) (quoting Fairrow v. Fairrow, 559 N.E.2d 597, 600 (Ind. 1990)). Traditionally, the marital presumption of biological fatherhood has been rebutted by showing:
That a husband (1) is impotent; (2) was absent so as to have no access to the mother; (3) was absent during the entire time the child must have been conceived; (4) was present with the mother only in circumstances which clearly prove there was no sexual intercourse; (5) was sterile during the time the child must have been conceived; or (6) is excluded as the child’s father based upon blood grouping test results. Id.
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To state the obvious, a purely biologically-based evidentiary standard of rebuttal would not provide equal protection to women in same-sex marriages seeking access to the “governmental rights, benefits, and responsibilities” that are “linked to marriage[,]” Obergefell, 576 U.S. at 670, including the requirement that children born into such marriages are presumed legitimate, born in wedlock, and that each wife in the union is considered a parent. Henderson, 947 F.3d at 488. One spouse in these kinds of unions will necessarily lack a genetic connection to the child, which would render the presumption rebuttable in every instance, and thus be illusory. That said, for our purposes we need not define the precise contours of the marital presumption as it arises in same-sex marriages, nor need we define with specificity a generally applicable evidentiary standard of rebuttal that comports with equal protection considerations, which may not be appropriate given the novel and unique circumstances under which these cases will arise. It suffices to say that under the circumstances of this case, Baker rebutted the presumption by showing (1) he is the child’s biological father (by the admission of all parties), and (2) that the parties did not observe the requirements to enter into an enforceable sperm donor agreement, an issue we find particularly important given the dearth of evidence that Baker—either expressly or through his actions—manifested an intention to relinquish his parental rights to his biological child. See Appellee’s Br. at 9-10 (noting Sykes and Olbera chose to hyphenate N.O.-B.’s last name “to reflect both the marital and biological connections”).
Here, the trial court described Baker as a “sperm donor[.]” Appellants’ App. Vol. 2 at 89, 105. But the Indiana Supreme Court has expressly held that one cannot donate sperm through an act of sexual intercourse because “there is no such thing as ‘artificial insemination by intercourse[.]’” Straub v. B.M.T. by Todd, 645 N.E.2d 597, 601 (Ind. 1994), reh’g denied. Indeed, where artificial insemination is defined in the Indiana Code, the term expressly excludes insemination through intercourse. See I.C. § 16-41-14-2 (defining “artificial insemination” to mean “the introduction of semen into the vagina or cervix of a woman by means other than through the act of coitus”). This definition is consistent with dictionary definitions of the term.
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This Court has had multiple occasions to consider arrangements by which a female same-sex couple sought to have a child with the assistance of a sperm donor. In In re Paternity of M.F., the mother and her female partner wanted a child, and the mother’s friend agreed to provide sperm, though it was ultimately not proven whether insemination occurred artificially or by natural means. 938 N.E.2d 1256, 1257 (Ind. Ct. App. 2010), reh’g denied, trans. denied. After conception but before birth, the mother and father signed a sperm donor agreement by which the mother agreed to waive any right to financial support from the father and the father agreed to waive rights such as custody, visitation, and decision-making concerning the child’s needs. Id. at 1257-58. Years after the child, M.F., was born, the mother and her partner split up. Id. at 1258. The mother then sought to establish the father’s paternity and secure financial assistance from him, which the trial court denied on the grounds that the sperm donor agreement was an enforceable contract. Id.
On appeal, a panel of this Court reiterated that sperm donor agreements are “unenforceable as against public policy” if insemination occurs via intercourse. Id. at 1260. For a sperm donor agreement to be valid and enforceable, the panel explained that “a physician must be involved in the process of artificial insemination” and a written instrument memorializing the agreement “must reflect the parties’ careful consideration of the implication of such an agreement and a thorough understanding of its meaning and import.” Id. at 1261. Because the contract at issue “easily me[t] th[ose] requirements” and the mother failed to meet her burden to prove that insemination occurred by intercourse, which would have invalidated the contract, the panel affirmed the trial court’s decision to deny the mother’s attempt to establish paternity of M.F. in the father. Id. However, the panel cautioned that “parties who execute a contract less formal and thorough than this one do so at their own peril.” Id. at 1262.
In Gardenour v. Bondelie, two women, Kristy and Denise, entered into a formal registered domestic partnership (RDP) in California in 2006. 60 N.E.3d 1109, 1111 (Ind. Ct. App. 2016), trans. denied. In 2012, they moved to Indiana and agreed to conceive and co-parent a child. Id. A friend agreed to donate his sperm, and he as well as the couple agreed to the terms of a sperm donor agreement. Id. at 1113. Over the course of multiple months, the friend came to the couple’s home regularly and donated sperm with which Kristy was artificially inseminated while Denise was present. Id. Once Kristy achieved pregnancy, Denise helped her plan for the child’s future, attended prenatal care appointments, parenting classes, and the two agreed the baby would carry Denise’s last name. Id. The child was born in 2013, and the couple co-parented for a while until Kristy cut off Denise’s contact with the child in 2014 and then filed a petition for dissolution of marriage the next year. Id. The trial court dismissed the dissolution petition because the parties were not married, but in so doing recognized the RDP was a valid contract that upon termination functioned like a dissolution of marriage. Id. at 1114-15. It ordered that Denise share joint legal custody of the child, receive parenting time, and pay child support. Id. at 1115. Kristy appealed, arguing in part that the trial court erred in determining Denise was the child’s legal parent because “an agreement between domestic partners to co-parent a child born by artificial insemination is not enforceable.” Id. at 1118.
On appeal in Gardenour, a panel of this Court upheld the trial court’s finding that Denise was the child’s legal parent. The panel found that “California law ma[de] clear a RDP [was] identical to marriage” and, after Obergefell, Indiana was required to treat Kristy and Denise’s spousal relationship as valid under principles of comity. Id. at 1117-18. Reviewing Indiana case law about legal parentage following births accomplished through artificial insemination, the panel reiterated the Indiana Supreme Court’s holding in Levin v. Levin:
A child conceived through artificial insemination, with the consent of both parties, is correctly classified as a child of the marriage. . . . We thus hold that, as in the case of adoption, where both the husband and wife knowingly and voluntarily consent to artificial insemination, the resulting child is a child of their marriage.
Id. at 1118-19 (quoting Levin v. Levin, 645 N.E.2d 601, 605 (Ind. 1994)) (emphasis in original); see also Engelking v. Engelking, 982 N.E.2d 326, 328 (Ind. Ct. App. 2013) (concluding that because a nonbiological father and mother knowingly and voluntarily consented to artificial insemination, the nonbiological father was the children’s legal parent). Applying Levin and Engleking, the Gardenour panel held that “Kristy and Denise, as spouses, knowingly and voluntarily consented to artificial insemination.” 60 N.E.3d at 1120. Notably, the panel emphasized that there was “a proposed sperm donor agreement and ultimately all three agreed to the arrangement.” Id. at 1119 (emphasis in original).
The situation in this case is different from those considered in M.F. and Gardenour for a few reasons. First, following Henderson, because Sykes was married to Olbera when Olbera gave birth to N.O.-B., Sykes is presumed to be N.O.-B.s parent. Second, there is no risk that successful rebuttal of the marital presumption would leave N.O.-B. without a second parent as both Sykes and Baker seek parental rights. See Straub, 645 N.E.2d at 600 (“Any agreement purporting to contract away [a child’s right to receive support from two parents] is directly contrary to this State’s public policy of protecting the welfare of children[.]”); see also Sheetz v. Sheetz, 63 N.E.3d 1077, 1083 (Ind. Ct. App. 2016) (applying equitable estoppel to prevent nonbiological husband who had long held out child as his own from rebutting the marital presumption and noting public policy did not support leaving the child without a father).
In any event, the parties in this case unquestionably failed to enter into a valid sperm donor agreement. Olbera was inseminated via intercourse before she and Sykes married and during a period when all three parties were having consensual sex with each other. Moreover, there was no written agreement memorializing the parties’ intention that N.O.-B. would be a child of Sykes and Olbera’s marriage and that, as a consequence, Baker would relinquish all legal rights to the child. We find nothing in the record to reflect that Baker ever explicitly or implicitly demonstrated an intention that his biological child would exclusively be considered a child of Sykes and Olbera’s marriage or that he knowingly and voluntarily relinquished his parental rights to the child. Indeed, the court’s findings focused on the women’s intent to the exclusion of Baker’s.
Specifically, the trial court found that Olbera and Sykes wanted to have a child together and agreed to have Baker provide the sperm necessary to conceive a child. Despite the women’s apparent understanding of this arrangement, the parties all agreed that Baker would be part of the child’s life because he wanted to be involved in the child’s life and they wanted the child to know his biological father. N.O.-B. was conceived prior to the marriage, shortly before the three labeled themselves “a throuple.” Tr. at 25. However, after Sykes and Olbera consulted an attorney toward the end of the pregnancy, Sykes came to believe they needed to marry to ensure her status as N.O.-B.’s parent. Sykes and Olbera were married just weeks before N.O.-B. was born, but Baker was present for his birth and the couple also gave him Baker’s last name. Sykes and Olbera lived with Baker for well over a year into N.O.-B.’s life, and Baker remained in the home for a while even after Olbera moved to Texas. There was no indication that he ever entered into an informed agreement or otherwise intended the arrangement found by the trial court. In fact, Baker testified at the April 30, 2025 hearing that he told Sykes and Olbera that he wouldn’t “be a sperm donor[,]” and that he expected to “be a father to [his] child” from the outset and had “been doing [that] ever since” N.O.-B. was born. Id. at 127.
We conclude that Baker met his burden to rebut the marital presumption by “direct, clear, and convincing evidence.” Sheetz, 63 N.E.3d at 1080 (quoting Myers, 13 N.E.2d at 482). Baker, as the biological father of N.O.-B., never entered into an enforceable agreement with Sykes and Olbera to merely serve as a sperm donor and relinquish his rights to legal parentage. There is no evidence from before N.O.-B. was conceived through the date of the joint hearing in this matter that Baker intended such an arrangement or that he knowingly and voluntarily consented to give up his parental rights to N.O.-B. Thus, the trial court clearly erred when it determined Sykes is N.O.-B.’s legal parent.
Conclusion
We conclude that although Sykes was presumed to be N.O.-B.’s legal parent because he was born while she was married to Olbera, Baker rebutted the marital presumption and must be identified as N.O.-B.’s legal parent. Accordingly, we reverse the trial court’s order dismissing Baker’s petition to establish paternity and remand for further proceedings in that cause consistent with this opinion. We also reverse the trial court’s decree of dissolution to the extent it deemed N.O.-B. a child of Sykes and Olbera’s marriage and its custody and parenting time decisions that flowed from that erroneous finding.
Reversed and remanded with instructions.
Brown, J., and Altice, J., concur.