MARYLAND PATERNITY STATUTE: IT IS NOT JUST FOR MEN ANYMORE
In 2006, the Court of Appeals of Maryland decided a novel issue, novel at least for now. That is, that a baby conceived from an egg donated by one woman and implanted in another, may have no mother at all under Maryland law.
The exact wording of the issue decided by the Court of Appeals in the case entitled In Re: Roberto d.B., 399 Md. 267 (2007) was: “[M]ust the name of a genetically unrelated gestational host of a fetus, with whom the appellant contracted to carry in vitro fertilized embryos to term, be listed as the mother on the birth certificate, when, as a result, children are born? The Circuit Court for Montgomery County held that it must. We shall reverse.”
This 4-3 opinion filed on May 16, 2007, and issued more than four years after the matter was filed with the Court of Appeals, creates blank spaces under “mother” in the birth certificates of twins born in 2001 at Holy Cross Hospital in Silver Spring, Maryland.
The unmarried man, identified only as Roberto d.B., arranged for the children to be born from his sperm and donated eggs. The woman, with whom he arranged to carry them, brought the case. Both individuals wanted it made clear that she had no legal claims or responsibility for the children.
Reproductive technologies, which today are constantly in a state of flux, have far outpaced the law, a view recognized by the Court in the majority opinion. As a result, the Court had no body of law to rely on when deciding new law in this area relating to alternative family creation and structure.
“What had not been fathomed exists today,” Chief Judge Robert M. Bell wrote for the majority. “The methods by which people can produce children have changed.”
The court found that paternity laws apply equally to men and women, based on the state’s Equal Rights Amendment. It is an important decision because across the country, laws have been rewritten and reinterpreted over a generation in gender-neutral ways. For example, alimony, once strictly accorded former wives, can be awarded to ex-husbands. Maryland’s paternity statute was written to define paternity. In other words, the law was written to identify the father. However, with this recent decision, the statute can now be used by women in the same way to challenge maternity. The change is significant.
The current trend is that such cases are no longer necessarily about a couple. Parenthood cases have involved five people - a couple wanting a child, an egg donor, a sperm donor and a surrogate, or gestational carrier.
At the same time, amid emotionally charged politics of same-sex families - the court has yet to rule on same-sex marriage - legislatures are being asked to change laws that were written for traditional relationships. Birth certificates naming only a single mother are not uncommon, nor are single-parent adoptions.
But in the Maryland case settled yesterday, the man, Roberto d.B., absent a female partner, wanted to be a biological father. So, he arranged to create a child of his own with donated eggs from one woman and gestation provided by another. Holy Cross Hospital placed the surrogate on the birth certificate as the mother.
When Roberto d.B. and the surrogate sought a court order to remove her from the birth certificate - a process that is normally routinely granted - the judge in Montgomery County balked, stating that despite the fact that other judges have signed off in past instance, he didn’t see any authority in the law to do that. Roberto d.B. then appealed. The egg donor was not involved in the case.
Because this case had broad impact, included novel issues and had societal impact, the Court of Appeals took the case, bypassing the intermediate appeals courts.
Paternity laws were created back in the day when the person giving birth had to be the mother. In this case, Judge Bell wrote that under the Equal Rights Amendment, paternity laws apply equally to men and women. Just as a man can refuse to be the parent of a child to whom he has no genetic ties, so can a woman, Judge Bell said. “The paternity statute, as applied to men, and now, as to women, merely establishes that the process by which men can challenge paternity can now be employed by women,” he wrote.
“She had a reasonable expectation that her role in the lives of these children would terminate upon delivery of the children, and that the faithful performance of her duties under the agreement would not permanently impact her life, or the lives of her family,” Bell wrote.
There was one substantive dissent by Judge Dale R. Cathell. He stated that the majority fashioned a “strained interpretation” of the law that could lead to contracts in which people contract to create a baby but opt out of all responsibility for the child. The other two dissents by Judges Glenn T. Harrell, Jr. and Irma S. Raker were largely based on procedural grounds.
The names on a birth certificate don’t mean a child has no mother. It simply means that the woman who gave birth to the twins should not be required to have a legal relationship with the twins if they aren’t related to her. The current ruling is no different as single women using a sperm donor.
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