With No Genetic Connection Between the Baby and the Husband, Wife, or Surrogate, Case May Be First of its Kind in Maryland

Court Grants Petition to Name Couple on Birth Certificate as Legal Parents of a Child Born for them through Surrogacy using a Donated Embryo.

In what may have been Maryland’s first case of its kind, successfully argued by Shrybman Law Offices, P.C., the state’s Circuit Court for Baltimore City granted our clients’ petition to be named on a new birth certificate as the parents of a child born for them by a surrogate mother using a donated embryo with which none of the parties involved have any genetic connection. The court also Ordered that the surrogate must be allowed to relinquish all parental rights — if she in fact had any — and have her name not appear on the birth certificate.

Countless couples have become parents using the husband’s sperm, the wife’s egg, or both, making at least one of them genetically related to a baby carried and born for them by a surrogate. With little difficulty, they have received Maryland birth certificates naming them both as the child’s legal parents, though often the process involves an adoption of the child by the non-genetically related parent. Surrogate mothers — whether artificially inseminated with the husband’s sperm or implanted with the wife’s donor-fertilized egg — have had their names removed from birth certificates, and the intended mother is named the parent instead. This works in a similar legal manner for both straight and gay couples, or even singles. But to the best of our knowledge, this was the first Maryland case in which no party to the surrogacy — husband, wife or surrogate — had any genetic relationship to the child that was eventually born and in which the couple was not required to adopt this otherwise unrelated child. They were simply and unequivocally “declared” by the Court to be the legal parents.

With no Maryland law clearly requiring this outcome, we based our clients’ claim on three main premises: (1) an interpretation of the legislative intent of the state’s artificial insemination statute which bestows legal parenthood on a man who consents to the artificial insemination of his wife; (2) a recent Maryland Court of Appeals case in which the Court reversed a Circuit Court’s refusal to remove a surrogate’s name from the birth certificate of a baby which was genetically not her child (Shrybman Law Offices, P.C. also initially represented this single male petitioner); and (3) a California divorce case in which that state’s Court found that despite the lack of a genetic connection, the intended parents were the child’s legal parents because of their initiating role in the child’s conception and subsequent birth.

Referring to the Maryland artificial insemination law, we argued on our clients’ behalf that the type of reproduction contemplated by the statute and the type of reproduction in our clients’ surrogacy are analogous: both contemplate the procreation of a child by the consent to a medical procedure by someone who is not biologically linked to the child, but who intends to be the legal parent. We argued that the Maryland law should not distinguish between men and women. In this surrogacy with a genetically unrelated surrogate, both the intended mother and father — each also with no genetic connection to the resulting child — should be treated the same in law as an intended father whose wife is artificially inseminated with donated sperm.

While the decisions of courts can never be predicted, we are hopeful that the other Circuit Courts in Maryland will follow the lead established in this case, easing the way to legal parenthood for couples who choose to build families through surrogacy. It could also be beneficial for the couples who may have excess embryos, from their own fertility procedures, which have been frozen in storage. These couples may not wish to donate the embryos for scientific purposes or otherwise dispose of them, but rather give their embryos a chance at life in a different family. That is what happened in this case.

Notes
The case featured here is: In re the Petition of _____ and ______ for Declaration of Parentage; in the Circuit Court for Baltimore City. To protect the confidentiality of the parties involved, the names are omitted and the case is sealed as ordered by the Court.

The Maryland Court of Appeals case which allowed removal of a gestational surrogate’s name from a birth certificate, leaving only the name of the biological father is: In re Roberto d.B. 399 Md. 267, 923 A. 2d. 115. (2007).

The California Court of Appeals case which ruled that the intended parents of a non-genetically related child born through surrogacy were the legal parents for determining primary custody and child support in the context of the couple’s divorce is: In re the Marriage of John A. and Luanne H. Buzzanca 61 Ca. App. 4th 1410, 72 Cal. Rptr. 2nd 280 (1998).

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