In Re Roberto D.B.
399 Md. 267, 923 A.2d 115 (2007)
Rule of Law:
To comply with the Maryland Equal Rights Amendment, state parentage statutes must be construed to allow genetically unrelated gestational carriers the same opportunity as men to disclaim legal parentage, thereby enabling courts to order birth certificates that do not list the gestational carrier as the mother.
Facts:
- Roberto d.B., an unmarried male, initiated an in vitro fertilization procedure on December 18, 2000, using his sperm and eggs from an egg donor.
- The procedure resulted in two fertilized eggs.
- On December 21, 2000, these fertilized eggs were implanted into a woman, the putative appellee, with whom Roberto d.B. had contracted to act as a gestational carrier.
- The gestational carrier delivered twin children on August 23, 2001, at Holy Cross Hospital in Silver Spring, Maryland.
- Neither Roberto d.B. nor the gestational carrier wanted her name listed on the birth certificate as the 'mother,' because she had no genetic relationship to the children and did not intend to exercise parental rights.
- The gestational carrier expected her role to terminate upon delivery of the children, without permanently impacting her or her family's life.
Procedural Posture:
- Holy Cross Hospital, following standard procedure under Maryland Code § 4-208(a)(4)(iii) of the Health-General Article, reported the gestational carrier as the 'mother' to the Maryland Division of Vital Records (MDVR).
- Roberto d.B. and the gestational carrier filed a petition with the Circuit Court for Montgomery County, asking it to declare Roberto d.B. the father and authorize the hospital to report only his name to the MDVR.
- On August 29, 2001, the Circuit Court for Montgomery County denied Roberto d.B.'s petition, refusing to remove the gestational carrier's name from the birth certificate.
- Roberto d.B. filed a motion for reconsideration, which the Circuit Court denied on October 2, 2001, although it did declare Roberto d.B. the father and directed Holy Cross Hospital to issue birth certificates with his surname, while still including the gestational carrier's name as mother.
- Roberto d.B. filed a request for a hearing on the reconsideration request, which was held on January 14, 2002.
- On July 9, 2002, the Circuit Court for Montgomery County reaffirmed its earlier denial, stating no Maryland case law supported removing the mother's name and that it was inconsistent with the 'best interests of the child' standard.
- Roberto d.B. appealed this decision to the Court of Special Appeals (intermediate appellate court).
- The Court of Appeals of Maryland (highest court) granted certiorari on its own motion, prior to any proceedings in the Court of Special Appeals.
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Issue:
Does Maryland's Equal Rights Amendment require that state parentage statutes be interpreted to allow a genetically unrelated gestational carrier, who has contracted to carry in vitro fertilized embryos, to be omitted from a child's birth certificate as the mother, thereby affording women the same opportunity to deny legal parentage as men?
Opinions:
Majority - BELL, C.J.
Yes, Maryland's Equal Rights Amendment requires that state parentage statutes be interpreted to allow a genetically unrelated gestational carrier to be omitted from a child's birth certificate as the mother, thereby affording women the same opportunity to deny legal parentage as men. The Court found that the Maryland paternity statute, enacted prior to the advent of assisted reproductive technologies, provides a mechanism for men to deny paternity based on a lack of genetic connection but offers no equivalent for women, specifically genetically unrelated gestational carriers, to deny maternity. This disparate treatment violates Maryland's Equal Rights Amendment (Article 46 of the Maryland Declaration of Rights), which prohibits the State from imposing a burden or granting a benefit to one sex over another without substantial justification. Citing precedents like Giffin v. Crane and Rand v. Rand, the Court reiterated that the E.R.A. mandates equal treatment regardless of sex. To avoid a constitutional conflict, the paternity statutes must be construed to apply equally to both sexes. The Court also clarified that the 'best interests of the child' (BIC) standard does not apply in this context because there is no dispute over parental rights, no issue of the father's unfitness, and no contest between a parent and a non-parent for custody. The Maryland Division of Vital Records had also indicated its willingness to comply with a court order to remove a gestational carrier's name. This interpretation does not create an 'intent' test for parentage but extends existing genetic-based challenge mechanisms to women.
Dissenting - CATHELL, J.
No, the Court should not interpret existing statutes to allow a genetically unrelated gestational carrier to be omitted from a child's birth certificate as the mother, as this is a matter for the Legislative Branch to address first. The dissenting judge argued that the profound societal questions raised by advanced reproductive technologies, such as the possibility of a child having no mother at birth, are fundamental public policy issues that should be addressed by the Legislature, which possesses the necessary resources (studies, ethicists, social scientists) to thoroughly explore them. The dissent contended that the majority's decision effectively creates a problematic 'intent' test for maternity, inconsistent with how paternity is generally handled, where a man cannot deny fatherhood simply due to a lack of intent at conception. If mothers can deny maternity based on intent, then fathers must be granted the same right, which could lead to children having neither legal parents and becoming solely dependent on the State. The dissent emphasized the importance of both parents for a child's well-being and foresaw practical difficulties for children with birth certificates showing no mother. The existing statutes were not designed for such novel situations, and the majority's interpretation represents an overreach of judicial power into legislative domain.
Dissenting - HARRELL, J.
The Court should not decide this question at present due to an inadequate record and the lack of a properly raised and argued equal protection challenge in the lower court. Justice Harrell, joined by Justice Raker, agreed that Maryland's parentage statutes are outdated regarding reproductive science and require legislative review. However, they argued that the equal protection challenge, central to the majority's holding, was not adequately presented, argued, or decided in the Circuit Court. The case proceeded with a 'walkover' presentation, lacking adversarial testing and thorough legal briefing. The trial judge's ruling did not explicitly address an equal protection claim, indicating it was not a primary issue below. The dissent expressed reluctance to exercise discretion under Md. Rule 8-131(a) to decide an issue not properly raised below, especially given the 'woefully inadequate' record. They also believed the interests of the children were not sufficiently represented and suggested appointing counsel for them on remand. The dissent felt the majority's dismissal of the 'best interests of the child' standard was premature, as it avoided the fundamental legal definitions of 'parent,' 'mother,' and 'father' in this new context, which would require a more developed record. The justices advocated for judicial restraint and deference to the Legislature on such complex legal and societal issues.
Analysis:
This case significantly expands the interpretation of Maryland's Equal Rights Amendment and parentage statutes to encompass modern reproductive technologies. By allowing genetically unrelated gestational carriers to deny maternity, the Court establishes a critical legal principle that genetic connection is paramount in determining legal parentage for both sexes, preventing discrimination. This ruling paves the way for intended parents in gestational surrogacy arrangements to be recognized as legal parents without requiring the gestational carrier to be listed on the birth certificate, aligning legal recognition with biological and contractual intent. Future cases may rely on this precedent to challenge traditional notions of parentage in other contexts involving assisted reproduction, potentially prompting further legislative action to explicitly address these evolving issues.
