Deceased and surviving partners in same-sex couple both named as parents of child born by artificially inseminated surrogate.

Man died five weeks after birth of baby who had been conceived for him and his partner with anonymous donor sperm.

In the first such case ever, a Maryland Court rendered a Judgment of Parentage for both men of a same-sex couple and ordered that both be named on a birth certificate as the parents of a baby girl born for them by a surrogate mother. This order was issued even though one of the partners had died five weeks after the baby’s birth, before any other Court proceeding related to the child’s birth certificate could even be initiated. Moreover, neither partner had a genetic link to the child who was conceived by the surrogate through artificial insemination with anonymous donor sperm.

Shrybman Law Offices, P.C., had helped the men select and contract with a surrogate to bear a child for them. Their original plan had been for one of the partners (who we’ll call Gregory) to provide the sperm for artificially inseminating the surrogate. Medical tests had already determined there was a low probability of success with sperm from the other partner (who we’ll call Jonathan).

As it turned out, Gregory’s sperm was not much better and 13 attempts to produce a pregnancy failed. Determined to become parents, the partners and their surrogate agreed to try artificial insemination again, but this time with anonymous donor sperm from a sperm bank. The first such attempt resulted in a pregnancy.

Shortly after the successful insemination and conception, Gregory suffered a terrible adverse reaction to a routine flu shot, rendering him paralyzed and requiring several months’ hospitalization. His condition eventually improved to the extent that he could be discharged from the hospital.

The surrogate subsequently gave birth to their baby girl, who went home from the hospital to live with Gregory and Jonathan. Just over one month later, and before Gregory and Jonathan had instituted a Court proceeding to establish their parentage and obtain an order for a new birth certificate naming them as the parents, Gregory suddenly died.

There is a well-settled legal principle in Maryland and most other states, that no Petition for Adoption can be filed on behalf of a dead individual and if a would-be adoptive parent files a Petition for Adoption, the adoption proceeding ends upon that person’s death. Simply stated, a dead person cannot become an adoptive parent.

And we understand why many people might look initially at Gregory and Jonathan’s case as one of adoption. They had no genetic connection to the child that was born for them. By law, the artificially inseminated surrogate and her husband would be presumed to be the legal parents. Like a traditional adoption process, they consented to the relinquishment of their parental rights so that the baby could be raised as the child of someone else.

But in our pioneering argument on behalf of Jonathan (and through him, Gregory) we contended that the principle precluding adoption by a dead man did not apply in this matter. We argued that this was not a case of adoption, but parentage. The difference is important, and was crucial to our case. In an adoption proceeding, would-be adoptive parents are seeking a judgment to establish a parent-child relationship. In a parentage proceeding, individuals who are already parents are seeking a judgment to recognize an existing parent-child relationship and have that relationship properly reflected on the child’s birth certificate.

Our primary argument was based on a combination of Maryland statutes and case law, established largely by cases in which our firm successfully represented other clients. We argued that the individuals whose desire for parenthood, and whose decisions and actions lead to the pregnancy of a surrogate mother, are in fact the parents of the resulting child from the point of conception going forward. Surrogacy is fundamentally different from adoption in this aspect. In a traditional adoption context, the would-be parents can only become the parents of a child at some point after the child is born.

Jonathan and Gregory brought about the birth of this baby girl by initiating the surrogacy process and engaging an attorney, a surrogate, doctors, labs, and sperm bank. As far as the law was concerned, we argued, they were the baby’s parents at the point she was conceived. And just as a man is still the legal father even if he dies before or soon after his wife gives birth to his child, so was Gregory still the parent of this baby who came into this world by his actions.

We also argued that it would be in the best interests of the child for the Court to declare Jonathan and Gregory the parents and order that both their names be entered on the child’s birth certificate. The child’s initial birth certificate already reflected both men’s last names as her hyphenated last name, with no other information showing where her last name came from. It named the surrogate as her parent, even though she had relinquished all of her parental rights and responsibilities. The address listed was that of the two men, even though they were nowhere named. We contended that such a birth certificate was likely to cause the child angst, confusion, embarrassment, and other negative feelings, as she grows older. The bottom line, in our view, was that this birth certificate, read together with the documents signed by the surrogate and her husband relinquishing any parental relationship, left the child with no legal parents.

Plus, the child was entitled to financial benefits from Gregory’s estate or the Federal government, which she (or the surviving father on her behalf) would only be able to claim with a Judgment of Parentage rendered by a Court of competent jurisdiction and a birth certificate issued by the Maryland Division of Vital Records reflecting that she is Gregory’s child.

Finally, we contended that the Court should follow the lead of the Maryland Court of Appeals, which in an earlier case* had found it significant that the Maryland Division of Vital Records expressed no objection to changing a birth certificate in the way that all parties had desired. In that previous case, the Court’s majority opinion not only cited the State’s lack of objection but quoted a passage from a letter written to the Birth Section Chief of the Maryland Division of Vital Records, and signed by her in concurrence, stating in part: “Each case may differ. The Division will make its best efforts to accommodate the wishes of the parties as those wishes are incorporated in a court order.”

That letter was written by James A. Shrybman, who was the attorney for the client in that 2007 matter as well as for Jonathan and Gregory in this case.

The readiness of the Division of Vital Records to issue the corrected birth certificate, together with Maryland’s "surrogacy friendly" legal environment, sends an encouraging message to individuals and couples seeking to build families in non-traditional circumstances. It should be clear to all that Maryland has come into the 21st century in legally recognizing the different types of parent-child relationships that exist today.

* In re ROBERTO d.B. 399 Md. 267, 923 A. 2d. 115. (2007)

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