*1 (2003). present Similarly, 835 A.2d officer police fact should decide whether ALJ as trier of circumstances. The under all grounds” had “reasonable present, were grounds” that “reasonable ALJ did find This evidence. supported by substantial finding was of the matter. be the end should joins concurring opinion.
Judge GREENE A.2d 115
In d.B. re ROBERTO Term, 110, Sept. 2002. No. Maryland. Appeals of
Court of May *3 (Deborah Luxenberg, Y. Luxenberg, Dorrance D. Dickens Dickens, P.C., DC, brief), on Washington, Johnson & appellant. argument appellee.
No behalf of BELL, ELDRIDGE,* J., RAKER, Argued before C. WILNER,* CATHELL, HARRELL, BATTAGLIA, JJ. * Wilner, J., retired, Eldridge, participated hearing J. in the and now Court; being conference of this case while active members of this after 3A, Constitution, IV, pursuant they Article Section also recalled participate adoption opinion. in the decision and of this d
BELL, C.J.
This case compels the Court to consider the ever-continuing
development
artificial reproductive
technologies.
In the
decades,
last two
methods of
producing
child have advanced
beyond the traditional
realm.
In a traditional
surrogacy
context,
donor,
egg
who
child,
is also the
carrier
carrier,”
“gestational
is artificially inseminated with the
sperm
father,
term,
intended
carries the child to
relinquishes
then
parental
birth,
after
with the father
acknowledging paternity
child;
and taking custody of the
his
spouse typically adopts the child. In re Marriage of
Moschetta,
The law is being tested as these new techniques become more commonplace and accepted; represents case *4 first challenge Maryland. The judice case sub presents a law, novel question of one of first impression in this Court: must the name of a genetically unrelated gestational host of a fetus, with whom the appellant contracted to carry in vitro embryos term, fertilized be listed as the mother on the certificate, when, result, birth as a children are born? The Circuit Court for Montgomery County held that must. We shall reverse.
A. procedural posture of Because unusual d.B., an Roberto un- disputed. appellant, The facts are not 18, 2000, male, initiated, on December medical married fertilization, known as in vitro sperm being with his procedure procedure The from an donor. eggs egg used fertilize eggs. in two fertilized resulted in this the woman with whom putative appellee
The case is any embryo appellant to act as a carrier for contracted efforts might as a result of his fertilization so be created gestate eggs in a Fertilized were they might womb. 2000, and on she implanted appellee in the December Holy August on Cross delivered twin children Hospital Spring, Maryland. in Silver Maryland hospital of a department
The medical records the Mary- births to required regarding to submit information (“MDVR”), part land Division of Vital Records1 Maryland Maryland Administration. Code Vital Statistics 4-208(a)(4)(iii) (1982, § Repl.Vol, Supp.) (“HG”).2 MDVR, having The received Health-General Article Records, Maryland Maryland The of Vital a division of the 1. Division Administration, website, according Vital Statistics to its issues certified birth, death, death, copies marriage for fetal certificates events verifications, Maryland, provides provides that occur in divorce procedures registering adoption, legiti- on to follow information mation, adjudication paternity. or an (1982, Maryland Repl.Vol., § Supp.) 4-208 Code provides, as Health-General article relevant: “(a) (1) institution, or en Within 72 hours after a birth in an route occurs institution, head of institution or a the administrative designee of the administrative head shall: "(i) Secretary provides, Prepare, on the that the a certificate of form birth; certificate; “(ii) required signature each Secure File the certificate. "(2) attending physician provide the date of birth and shall required medical information that are on the certificate within 72 hours after birth. *5 information, issues the birth certificates. Unless a court order otherwise provides, the hospital will report gesta- tional carrier as the “mother” of the child to the MDVR. HG § 4-208. Holy Cross Hospital followed this procedure.
Neither the appellee however, nor the appellant, wanted the gestational carrier’s name to be listed on the birth certificate as the “mother” of the children. It is the appellant’s and the appellee’s contention that the appellee was merely acting as a gestational carrier for intended, children that were never by hers, either party, to be and to whom she has no genetic "(3) The results of the hearing screening universal of newborns shall incorporated supplemental into the required by information Department to be part submitted as a of the birth event. “(4) Upon the birth a child to an unmarried woman in an institu- of tion, the administrative head designee institution or the of of administrative head shall: “(i) opportunity Provide an the child’s mother and the father complete a parentage recognizing parentage standardized affidavit of of the child on the provided by Department standardized form Article; § Human Resources under Family 5-1028 Law "(ii) Furnish to the mother written prepared by information the Child Support Enforcement Administration concerning the benefits of hav- established, ing paternity of her child including availability services; support child enforcement "(iii) completed Forward the Department affidavit to the of Health Hygiene, and Mental Division of Vital Department Records. The Hygiene, Health and Mental Division of Vital Records shall make the child, affidavits parents, guardian available to the aor support agency upon request. enforcement " "(5) institution, institution, An the administrative head of the designee institution, of the administrative head of an employ- and an ee may of an institution not be any held liable in cause of action arising out paternity. of the establishment of “ “(6) If the child’s mother was not married at the time of either conception birth, conception birth or between the name of the may father not be entered on the certificate without an affidavit of paternity by § as authorized Family 5-1028 of the signed Law Article by person the mother and the to be named on the certificate as the father. "(7) any paternity In case in which child is determined competent jurisdiction, court of the name of the father and surname of the child shall be entered on the certificate of birth in accordance finding with the and order of the court. "(8) birth, If the father is not named on the certificate of no other information about the father shall be entered on the certificate.” added). (Emphasis parental does not wish exercise appellee relationship. children, over, appellant nor to, does these two that, under her appellee contends do so. The desire that she her role expectation had a she reasonable agreement, delivery of upon terminate would lives of these children *6 her duties children, performance faithful and that the the life, impact her permanently agreement the would under family. the of her nor lives the to
Thus, appellant’s petition the appellee joined the it to issue an County, asking Court for Montgomery Circuit i.e., certificate, not list the one did “accurate” birth petition, In the as children’s mother. carrier the gestational the that the was appellant the court to declare they asked children, hospital report the of the and authorize father of the to the MDVR. only the name father the appellant appellee, of the Despite the contentions the County for refused to remove Montgomery Court Circuit rejected the from certificate and name the birth appellee’s the Court of appellant appeal noted an petition.3 The prior proceedings own motion and Special Appeals. On our court, In re Roberto this certiorari. granted in that Court (2003). d.B., 684, 372 Md. 814 A.2d B. children, twin genetic
The is the father appellant egg The having provided eggs. his to fertilize donated sperm case, donor, party genetic provider not a is the carrier of the fertilized appellee gestational The egg. womb, no developed despite contributing in her eggs process. genetic material the fertilization 2001, County August Montgomery same Circuit Court 3. On Parentage appellant’s for Determination of denied the Petition petition, appel- of Birth. In that Issuance of Accurate Certificates surrogate be from the birth lant asked the carrier's name removed denial, July appealed The which is in this occurred on certificate. August reaffirmed earlier 2001 denial. Circuit ruling The Court’s oral but sparse, outlines two reasons primary why name the gestational carrier should not removed from children’s birth certificate. It first that no case Maryland *7 4. We note that the Circuit also "[t]his Court stated that is not an any appropriate adoption,” providing why issue for without reasons for provides not. Section 4-211 of the Health General Article that a new competent jurisdiction birth "[a] certificate can issue where court of an parentage, legitimation, adoption has entered order as to the added). (Emphasis why the individual.” There is no reason a trial court, appropriate adoption proceedings, could not order the issu- naming ance birth of new certificate without a "mother.” why The Circuit Court also noted there are “health reasons” certificate, gestational carrier's name remain should on the birth even if parental rights her relinquished. are little This makes sense. The could, does, case presumably, pertinent father in this and all the have especially health records related to the child’s birth. This is the case gestational where egg neither carrier nor the donor unknown to father, necessary, easily as in this case. If provide the father could child, hospital, these parties. documents to the toor third reasoned, "[tjhere The precedent using court also is an abundant for genetics identifying parent,” relying the Clark, test for a natural on Belsito v. (1994). 67 Ohio Misc.2d 644 N.E.2d Belsito dealt determining belonged with whose name on the certificate birth when existed, two gestational egg candidates carrier and the donor. The dispute by employing newly court resolved the "intent” formed test to determine who "mother” should be. 644 N.E.2d 767. Because attempt we do not to redefine awhat "mother” is in this Belsito event, applicability. any reject has little In we its rationale for deter- is,
mining a who "mother” intent dispositive is the factor in the parentage determination. the law shall rights under “[e]quality Rights, specifies that appellant The of sex.” abridged or denied because not be allow a statutes Maryland’s parentage that because contends not, a woman currently, allow to and do deny paternity, man statutes, interpreted different- deny maternity, these unless to challenge. are to E.R.A. ly, subject Maryland codified as Maryland, paternity The statute seq. §§ 5-1001 et Vol.) (1999, Family Repl. Code which Article, processes through and outlines the steps Law fathers alleged and thus hold paternity, the state can establish It duties, support. such as child parental for responsible alleged deny paternity. allows fathers to also the statute of the stat- legislative purpose 5-10025 outlines the Section ute, improve duty that “this State has a providing out of of children born deprived social and economic status wedlock,” general are goals promote and that its “to by out wedlock welfare and best interests children born them, rights the same nearly practicable, as as securing wedlock,” care, children support, and education as born out of “to on the mothers and fathers of children born impose provides: 5. Section 5-1002 " findings; purpose § Legislative 5-1002. general “In "(a) Assembly The General finds that: “(1) duty deprived improve State social and econom- has wedlock; ic status of children born out of "(2) procedures socially necessary policies and in this subtitle are and desirable. “Purpose “(b) purpose of this is: subtitle "(1) promote general interests of children welfare and best them, nearly practicable, securing for as born out of wedlock care, support, the wedlock; as children born in same education *8 "(2) impose born out of to on the mothers and fathers of children responsibilities parenthood; obligations of wedlock the basic and and “(3) procedures determining paternity, custody, simplify he for t guardianship, responsibility support the born out and children of wedlock. “Scope of subtitle "(c) may right Nothing in subtitle be to limit the of a this construed paternity putative of a complaint father file a to establish his child. the obligations responsibilities wedlock basic of parent- hood.”
To a paternity, proceeding brought establish must be before eighteenth shall day,6 by child’s birth be filed either the by mother or a third party if the mother is or deceased unwilling complaint.7 otherwise' unable or to file such a A conjunction blood may requested proceed- test be with the and, trial, at ing,8 the burden is on the complainant prove is “alleged If, father the father of child.”9 (1999, Maryland Repl.Vol.) § 6. Family Code 5-1006 Law provides, Article as relevant: "(a) proceeding paternity A to establish of a child under subtitle may begun any eighteenth birthday.” be time before the child's (1999, Maryland Repl.Vol.) § 7. Code Family 5-1010 of the Law provides, as Article relevant: "(d) subsection, "(1) Except provided complaint otherwise in this supported filed under this subtitle shall be oath mother woman, pregnant party or whether she paternity or not is a to the proceeding. "(2) may complaint be filed without oath if mother or pregnant woman: dead; "(i) is "(ii) complaint; refuses to file a "(iii) child; identity refuses to disclose father of the "(iv) oath; mentally physically incapable making or or "(v) refuses to make oath. "(3) (2) complaint paragraph If is filed without an oath under this subsection: "(i) birth; complainant verify pregnancy shall the fact of the or "(ii) pregnant living, mother if woman she shall made a defendant. (1999, Maryland Repl.Vol.) § 8. Code Family 5-1021 of the Law provides: Article " genetic § 5-1021. Blood or test "(a) subtitle, pretrial inquiry In connection with under this Attorney request may any pretrial State’s individual summoned inquiry genetic to submit to a blood or test. “(b) Attorney’s request If the individual refuses the State’s to submit test, genetic Attorney may apply a blood the State’s to the circuit court for an order that directs the individual to submit the test.” (1999, Maryland Repl.Vol.) § Code Family 5-1027 of the Law provides, Article as relevant: *9 father the however, alleged that the is the trial court finds of the father, paternity.10 Section 5-1028 then shall declare that an unmarried father Law Article details Family an affida- opportunity an execute provided mother “shall be If trial provided as for under HG 4-208. the vit of parentage” father, is not the however, court, alleged finds the father Thus, paternity.11 or the declaration of modify it can set aside has alleged that an father power the court has the declare is found. genetic no status no connection paternal when no opportuni- has argues equal that a woman appellant The essence, maternity connection—in ty deny genetic based action, if link a man and paternity genetic in a no between found to established, the man would not be a child is woman, end, gesta- but a a and the matter would parent, to be carrier, will be forced the State tional as children, of genetic her lack despite mother of the “legal” connection. that, interpretation under appellant offers his avoided, a statutes, problem the E.R.A. “because
parentage a court for carrier could non-genetic gestational apply upon showing that she was parentage order receive one trial, by a complainant the burden on the to establish "At alleged preponderance of evidence that the father is the father the child.” (1999, Maryland Repl.Vol.) Family § Law Code 5-1032 of 10. provides, Article as relevant: father, the alleged finds that the father is the court shall "If court pass alleged father be the an order that ... declares the father child ...” (1999, Maryland Repl.Vol.) Family § Law Code 5-1038 of provides, as Article relevant: orders; Finality "5-1038. modification “(a) "(2)(i) may be paternity A modified or set aside: declaration genetic ... "2. if blood test establishes exclusion father in the order.” individual named related to the genetically child and never intended to be its parent.”
Maryland accommodates, law currently if not contem plates, birth certificate on which mother is not identified. Thus, the trial courts may pass such Maryland order. *10 (1982, § Code Repl.Vol., Supp.) 4-211 of the Health-General Article details the which process through the “Authorization of new certificates of may birth” be obtained. It provides, as relevant:
“(a) (c) provided section, Except as in subsection of this the Secretary shall make a new certificate of birth for an Department if the satisfactory proof individual receives that: “(1) State; The individual was in this born “(2) location, of of Regardless the one the following has occurred:
“(i) The of previously parents unwed the individual have individual; married each other after the of birth the “(ii) A court of competent jurisdiction has entered an order as to legitimation, the of parentage, adoption the individual; or
“(in) If a is father not named on an earlier certificate of birth:
“1. The father the individual acknowledged has him- by father; self affidavit be the “2. The mother of the by individual has consented affida- tovit the acknowledgment.” added). (Emphasis that, The appellant contends because the statute new controlling only birth “par- certificates addresses which, entage,” abstract, without limitation to as to in the preclude does not from courts issuing authorizing order a birth certificate that not list does the mother’s name.12 We 4-211(a)(2)(iii) § 12. We note that allows for a new birth certificate to determined, be issued when a man is paternity later as a result aof action, to be provisions the father of a child. Under the set forth in this case, a later-determined mother's name could also be added to the certificate. parentage remaining construing only matter
agree; opportunity that affords women same way in a statutes men have. deny parentage Article Family Law added to statute was paternity
The from Judging § 2. in 1984. See Acts chapter statute, drafting used language Legislature of traditional outside Legislature contemplate anything did not Article Family § 5-1027 of the Law example, For childbirth. that the child is a provides, presumption rebuttable “[t]here its mother was child of the man to whom legitimate conception,” legislative purpose and the time married out of to be to aid “children born purports statute where provide for a situation wedlock.” The statute does unmarried, much less situation potential are parents reproductive using are conceived an assisted where children technology. today. had not fathomed exists methods
What been changed; option have produce can children people which methods, available, using is now these having children *11 who, otherwise, to have children. would not be able people for in the tradition- producing the child Whether reasons not, longer only the no biological adoption al sense are couple imagine a married that certainly One can option. of their own infertile, genetic have children but wishes that to reproductive technologies allow for makeup. Assisted statute, the contemplate did not paternity clearly, occur. The from new technolo- many legal arising issues these potential are the laws that will continue to arise unless gies, issues As light technologies. or construed in these new rewritten restrict, than exists, paternity statute serves to rather have relationships parents wish to protect, intended processes. these new using with children conceived written, statute, paternity oppor- Again, provides to avoid while tunity genetically parentage, for unlinked males have the option. unlinked females do not same genetically State, any by This action without Court has found that on, basis,13 that imposes grants substantial a burden scrutiny reviewing applied when Court has a strict standard This 13. See, Crane, e.g., Md. gender-based v. 351 discrimination claims. Giffin 280 sex, other,
benefit to one
and not to
the Maryland
violates
Crane,
v.
149,
Equal Rights
133,
Amendment.
Md.
351
Giffin
1029,
(1998). There,
716
parents
A.2d
1037
where the
of two
girls
father,
separated,
girls
the two
remained with the
with
maintaining regular
mother
visitation until
moving
135,
year
another state a
later. 351 Md. at
A.2d at
716
1030.
In
parties
proceedings,
custody,
divorce
both
asked
135,
fees.
support,
attorney’s
The trial court in custody, commenting that: 133, 150, (1998) (holding Equal Rights A.2d that the classifications, flatly prohibits gender-based Amendment absent sub Club, Inc., justification); Burning stantial 294, v. Tree State 315 Md. *12 366, (1989) (holding 554 A.2d justifying that the of burden State, gender upon scrutiny classifications falls the and that the level of to the subject scrutiny which are classifications is "at least the same as classifications”); Rand, 508, 512-514, racial Rand v. 280 Md. 374 A.2d instructive, (1977) (finding interpreting 903-904 in the breath of
Maryland's Equal Rights applied Amendment as it sex discrimina tion, Supreme Washington’s the “overriding compelling Court state standard, Supreme judicial interest” the and Illinois "strict Court’s standard). scrutiny” need particular girl having ... a Court gleans “[T]he a fore and is to come to the has seemed for her mother in case. my factor in determinations necessary of the children that the best interests “The Court feels circumstances, by the exemplified as change of material the exempli- very at the least an reaching age [the child] where hand, come a causes the Court a need for female fies their reside with that the children should conclusion mother.” 140-141, at 716 A.2d
351 Md. at
father
Special Appeals,
In his
Court
appeal
the sex of
by considering
trial court erred
argued that the
at
custody
351 Md.
its
determination.
parents as
factor
in an
Special Appeals,
A.2d
1033. The Court of
at
of gender
consideration
opinion, held
unreported
“[t]he
custody
determining
residential
was a valid consideration
This decided is whether, of the custody proceeding, parent in a child sex determining which legitimate proper consideration custodian, held: them the residential appropriate Amend- principle Maryland Equal Rights “The basic thus, ment, that sex is not factor in deter- permissible women, men, or so mining legal may upon any person by law be based treatment other person is of one sex the circumstance such governmental invalidates generally ... that amendment to, on, grants a benefit imposes action which a burden not the other one. one sex but by Mary- equality between sexes demanded
“[T]he of indi- Rights ‘rights’ Amendment focuses on Equal land law,’ encompasses all forms of which viduals ‘under immunities, of citi- privileges, responsibilities benefits these, for- absolutely ... E.R.A. Maryland zens. As may ‘rights,’ bids the determination of such be accorded i.e., law, sex, on the basis of one’s sex is solely *13 282 determination____
impermissible
making
factor in
any such
Rights
the Equal
Amendment’s
of
guarantee
of
equality
rights
only
under the law
that
‘can
mean
sex is not a
”
factor.’
(citations
148-149,
omitted).
Other
cases reflect the
application
the Amend-
Bainum,
intent.
53,
ment’s
See
Tree Club v.
Burning
305 Md.
(1985)
(holding
A.2d 817
that
drastically
the E.R.A.
al-
tered
traditional views
validity
sex-based classifica-
imposed
law,
tions
under the
and was
evidence that the
cogent
people Maryland
fully
were
rights
committed to
for
equal
women);
Rand,
508,
men and
Rand v.
280 Md.
Interpreting the statute to extend
the same
women
maternity
as it
works
applies
quite well—to men
—and
paternity
required.15
is all that is
*15
Judge
correctly
15.
Cathell’s dissent
notes that this case illustrates how
reproductive technologies
produced
virtually
new
have
situations
incon-
Roberto,
295,
267,
115,
ago.
ceivable decades
In
399
Re
Md.
923 A.2d
(2007) (Cathell, J.,
however,
feels,
dissenting).
majori-
132
He
that the
ty's
opens
floodgate
decision to address one of these situations
to a
problems,
Legislative
number of moral
best left to
ones
Branch to
295,
J.,
(Cathell,
address. 399 Md. at
A.2d at
dissenting).
say,
agree.
we
Needless to
do not
Primarily,
opinion
his dissent
concerned
seems
that this
creates an
that,
gestational
"intent” test. The dissent
because
feels
carrier in
requested
this
has
case
to have her name
from the
removed
birth
challenging,
might
certificate without
in the
a
same manner man
in a
suit,
paternity
genetic
that the
material used to
create
child is
hers,
actually
opinion
a
challenge maternity
allows woman to
298,
because she did not “intend"
be a
to
mother.
The Circuit Court surrogate child remove the mother’s interests of minor [to it only explanation certificate].” name from the birth however, is as follows: provides, why it is not public policy
“There are lot of reasons name of the child not to have mother’s the best interests the birth certificate. on have, might want to why you
“There are health reasons name the birth it would be to have mother’s good certificate, available.” and have that information aside, clear, however, that, explanation It the trial court’s (“BIC”) apply the best interests of the standard does in the we judice. unusual circumstance case sub While factor in controlling adoption that “the previously have noted cases is ... what best serves the custody interest 10911, child,” In re No. 335 Md. Adoption/Guardianship (1994), 642 A.2d is clear the context the stan- significant determining which the issue arises is dard which evaluate situation. cases, will the BIC family employ
In law courts standard analysis dispute concerning custody their when there is *16 carrier, gestational egg was between the donor and "intended” 4, supra opinion at be the mother. See note 6. This does not create test for women. "intent” predict opinion attempt reproductive future This does not of attempt surroga- technologies, policy topic on the does not write cy, and it does not what a is. define “mother” by opposing parents Court, child or third parties. This example, has stated previously:
“A court faced with a question custody upon child separation parents of the may joint continue the custody that has existed in the past, custody award one parents, or to a third person, depending upon what is in the best interest the child.” 290, 301, (1986)
Taylor Taylor,
964,
v.
306 Md.
508 A.2d
added).
(emphasis
The use of the BIC standard is highly
dependent on
case;
is,
the circumstances surrounding the
the BIC standard is not always applied uniformly or in the
way,
same
even when the
parental
case involves
some
sort.
example,
For
cases involving the
of a
surname
and a dispute by
parents
name,
over that
two different
similar,
standards are applied under two
yet separate, circum-
stances. Compare
569,
Schroeder v.
Broadfoot,
Md.App.
(2002)
As Schroeder
where the child has “no
surname,”
initial
the courts will apply
“pure
best interests”
There,
standard.
of Special Appeals,
Court
applying this
standard, held that a child’s best interests were not necessari
ly served by automatically
assuming
father’s surname.
The case involved two
parents
unmarried
who disagreed as to
whose surname the unborn child should
upon
assume
birth.
572,
142 Md.App.
birth,
at
at
A.2d
775. After
the mother
not report
father,
did
that Broadfoot was the
so his name was
not listed on the child’s birth
certificate.
287 last from the mother’s changed surname have the child’s at own, Md.App. 142 “Broadfoot.” “Schroeder,” to his name, that the argued, primarily, The father 571, at 775. 790 A.2d ex- his mother’s over whether confused “will become Schroeder) 142 at (Brent Md.App. is his father.” husband 142 Md.App. agreed. 574, at 776. The Circuit Court 790 A.2d 575, at 777. at 790 A.2d in standard, as established proper noting
After
Reichenbach,
88, 90,
A.2d
492
303 Md.
v.
Lassiter-Geers
a child fail
mother of
(1985),
that “when a father and
was
304
the surname
disagree upon
and continue
agree
at birth
child,
is one to be determined
question
given
to be
child,”
the Court
of the
interest of
the basis
best
upon
of the name
resolution
“judicial
held that
Special Appeals
for chil-
preference
customary
of the
dispute by application
Mary-
father’s surnames would violate
to bear their
dren
at
790
Md.App.
Amendment.”
Rights
land Equal
Lassiter-Geers,
94,
“We
dis-
resolving
as in
those
parents, just
unmarried
between
married, either at
who are or were
putes
parents
between
birth,
interests
pure
at the time of
best
conception equity,
matter
is one of
applies. Because the
standard
Thus, if
however,
a father
applies.
doctrine of laches
delays
seeking
paternity,
determination
assert-
objection
his
ing
name the mother has selected for
child,
court may
conclude that
the father has
child,
acquiesced
naming
the mother’s
and treat his
challenge as a
for the child’s
request
changed,
name
which the ‘extreme circumstances’
applies.”
standard
587-588,
A.2d at
Md.App.
784-785.
*18
The result
in Schroeder
is different
from that which this
Dorsey.
Court reached in
In that
paternity
there was no
rather,
dispute;
arose over
dispute
prior agree
whether a
ment had been reached as to the child’s surname.
As Schroeder and Dorsey parental dis putes, the use of the best interests of the child standard is dependent on the dispute circumstances. Where the is be parent however, tween a a non-parent, while the “best interests of judicial the child” standard is a factor in the resolution, it typically not addressed until the parent 320, found In Dougherty, McDermott v. 385 Md. 869 unfit. (2005), A.2d 751 we held that: determining
16. There were two factors to consider when the existence circumstances, namely: any of such whether there is evidence of by parent misconduct that could make a child’s continued use of a parent’s disgraceful, parent wilfully name and whether the abandoned parent. or surrendered his or her natural ties to 290 third custody private parties cases where disputed
“...
natu-
custody of children from their
gain
attempting
are
natural
court must first find that both
the trial
parents,
ral
their children or
custody
unfit to have
are
parents
significantly
which are
circumstances exist
extraordinary
custody
in the
of the
remaining
detrimental
consider the
a trial court should
parents,
before
parent
deciding
child’ standard as a means
interests of the
‘best
dispute.”
325,
at
McDermott
McDermott,
father,
grandparents,
and his maternal
ral
323-324,
A.2d at 753. After
“... dispute parent is between and a third private fit ... party, parties begin both do not equal footing ‘care, respect custody, and control’ of the children. The parent asserting a fundamental constitu- right. tional party The third is not. A private party third has no fundamental right constitutional to raise the children of others. Generally, statute, absent a constitutional non-governmental has party rights, third no constitutional otherwise, or to raise someone else’s child.” 353, added). 385 Md. at at (emphasis A.2d Accordingly, this Court also noted that typically, the “best interests the child” standard applied to disputes between natural fit parents, “most often arising] marriage dissolu- tion issues between ... constitutionally two equally qualified parents,” 385 Md. at A.2d and not between parents non-parents. Once the State inserts itself into situation, parenting by reason of the unfitness of the parents or as a circumstances, result of other the “best interest of the applied. child” standard is 385 Md. at A.2d at 771.
Thus, McDermott, typical “third-party” custody dispute, persons where other parents than the natural or the State are attempting gain custody or visitation respect with children of natural parents, we noted that:
“the ‘best interest’ standard is inappropriate unless the that the natural parents are unfit, finder of fact first finds the natural parents by their conduct have waived lost their ‘constitutional protections,’ or there is a finding extraordinary, exceptional, or compelling circumstances require the court to remove the child from the natural parents order to protect the child from harm. only It is if parents unfit, if are there is some exceptional circumstance exposing harm, the child to may the child be removed from custody of the parents. If a prelimi-
292 or circum-
nary parental extraordinary unfitness finding made, with is the court is then faced with what to do stances then, context, after only preliminary the child. In such may child be based findings proved, custody are on a ‘best interest’ standard.” added). Further- (emphasis Md. at 869 A.2d 772 more, standard, child
“the non-constitutional best interests (ie., circumstances, does extraordinary exceptional) absent to right not fundamental constitutional parent’s override fit parent, raise his her child when the case is between a inherent, is and a right to whom the fundamental parental constitutionally- such third who does not party possess natural cases between fit In protected parental rights. parents who both have fundamental constitutional the ‘ulti- parent, the best interests of the will be mate, In respect third-party factor.’ ... determinative Maryland, shall for if we have custody disputes, adopt we so, balancing the majority position. not done In the already ‘standards,’ statutorily-created of court-created or such test, ‘the best interest of the child’ with fundamental consti- private custody involving private tutional actions rights, fit, extraordinary third-parties parents where the are absent (i.e., circumstances, is right the constitutional exceptional) factor; parents only determinative ultimate if are ‘best extraordinary circumstances exist is the unfit considered, any contrary interest child’ test of the cases, notwithstanding.” comment in ... our added). 418-419, Md. at (emphasis A.2d at 808-809 sub judice, relinquish In the third party case desires There no contest parental rights, simply assert them. is no issue of on the parental rights. over There is unfitness Moreover, of the part nothing father. there with which ability parent against, measure the father’s to be a order is in the a trial court to rule that best interests grant child to father the he seeks. Accordingly, relief trial court that the BIC should be implication by the standard judice the case sub inappropriate, used and its use trial court was error.
C.
contracts,
is,
noting
surrogacy
It
requires
child,
for a
are
Two
payment
money
illegal Maryland.
statutes,
(2002,
§
Maryland
Supp.)
Code
3-603 of the
Article,
(formerly
Criminal Law
entitled “Sale
minor”18
*22
(1957,
Selling,” Maryland
Repl.Vol.)
entitled
Code
1992
“Child
C)
27,
(1999,
§
Maryland
Repl.Vol.)
Article
Code
2006
Article,
§
Family
5-3B-32 of the
Law
entitled “Prohibited
(formerly
payments”19
Compensation,”
entitled “Prohibited
5-327(a)
(1984,
§
Maryland
Repl.Vol.)
Code
of the Fami
Article)
Law
ly
provide.
so
We have enforced these statutes.
Runkles,
(1992)
See State v.
384,
326 Md.
trade,
money, property,
anything
a minor for
or
else
value.
"(b)
person
guilty
A
who violates this section is
of a misdemeanor
subject
imprisonment
exceeding
years
and on conviction is
not
$10,000
exceeding
or a fine not
or both for each violation.”
provides:
19. Section 5-3B-32
“
payments
§ 5-3B-32. Prohibited
"Prohibited act
"(a)
law,
Except
provided by
person may
charge
as otherwise
receive,
parent
prospective adoptive parent, any
from or for a
or
compensation for a service in connection with:
"(1) placement
preadoptive family;
of an individual to live with a
"(2)
agreement
custody
contemplation
adoption.
"Construction of section
“(b)
prohibit
by
payment,
person,
This section does not
an interested
customary charge
adoption counseling,
of a reasonable and
or fee for
hospital, legal, or medical services.
“Duty
Attorney
of State's
"(c)
Attorney
Each State's
shall enforce this section.
"Penalties
"(d)
person
any provision
guilty
A
who violates
of this section is
of a
subject
exceeding
misdemeanor and on
conviction is
a fine not
both,
imprisonment
exceeding
$100 or
3 months or
for each
offense.”
relinquish-
but also included the
adoption,
with an
connected
money);
Adoption
In re
No.
custody of a child for
ment of
(1991)
§ FL
5-
(holding
Finally, we gestational of the objection no to the removal expressed to an response from the birth certificate carrier’s name Birth In a written to the Section of the Court. letter order outlining Records Maryland Division of Vital Chief with instances provisions dealing discussed previously several turn, nature, ac- signed, and of this the Section Chief to, following passage: quiesced unmarried, only and is the intended “If a biological parent *23 husband, father); her surrogate, the and the parent (usually an Affidavit of father were to execute biological and the father, biological that the father is the indicating Parentage parental all agrees relinquishes husband surrogate’s have, report if would any, registrar may that he issue a birth certifi- information. The Division would that and the surrogate as the mother cate for the child with if the were surrogate father as the father. Or biological father executed the biological and she and the unmarried report would Parentage, registrar Affidavit of a certificate for The Division would issue birth information. biological mother and the surrogate the child with the as the biological parent Then father as the father. and/or if the mother regarding all surrogate wanted information could institute certificate, the birth removed father from specifying to obtain an Order an action in Court order be ob- may Such an be removed. information twined, or a to deter- perhaps, through adoption proceeding Order, receiving such a Court parentage. mine After birth removing Division would issue a new certificate directions.” in accordance with Court’s information Shrybman, Attorney, from James A. Law Offices of Letter P.C., Morris, Shrybman, Kathryn A. A. Birth Section James Chief, Division of Maryland Department Hygiene, Mental 2001) (on author) (emphasis with (April Vital Records file added). THE OF CIRCUIT COURT FOR MONT-
JUDGMENT CASE REMANDED TO GOMERY COUNTY REVERSED. THAT COURT FOR PROCEEDINGS CONSISTENT WITH BE PAID BY THE OPINION. TO STATE. THIS COSTS RAKER, HARRELL, JJ., CATHELL and Dissent. CATHELL,
Dissenting Opinion by J.
I dissent. process manufacturing This case illustrates can children lead to unusual situations would have been inconceivable when the statuto- virtually ago decades relevant ry scheme was I necessarily agree enacted. do dis- agree remedy present that the for the situation created majority is I think appropriate wrong otherwise. it is for fashion, instance, majority the first the public policy creating as a The issues remedy. present are, do going they very society, my heart view, a matter Legislative government for the Branch of initially the courts.
It important to note what this case is not. It is not about woman, otherwise, mother, married or who wanting difficulty conceiving through has sexual intercourse or who does not want to through conceive sexual intercourse or direct insemination, artificial egg and thus wants have her ferti- *24 body lized outside her and then into implanted back her womb will, where she hopefully, give be able to natural birth to a will nothing child she raise as the mother. This case has to do n with fertility problems any cope with female attempts (so reflects), is no the record there In this case far as kind. otherwise, mother, mother, wants woman, who birth genetic name on the child or who wants her resulting to mother the certificate. birth case, man who of a wants simply apparently,
This is himself, it and, that he could not do recognizing a father hired) two different arranged (perhaps out and went him manufacture a child-one help and an assembler to women (a (or sell) mother), a egg genetic woman to donate dish,1 in a egg to fertilize the (apparently paid) technician mother) (the through carry the fetus another woman birth child in what would eject and then to gestation period At the end of birthing process. normally be considered who, a child accord- the result is manufacturing process, this is to have no mother at birth. majority, ing normal familiarity birthing some with hospital, having happens what to be understandably perceives processes, from whence the child the name of the woman places birth and (at from birth canal of emerged least the child has come woman), law. required by certificate as State the birth then claims foul hospital) the child and the Everybody, (except of a mother on a birth requires naming the law because joins of this the clamor majority Then the Court certificate. concept no mother at birth —a that the child has and decrees years. impossible for tens thousands thought aegis occurring under the of what is supposes One does not intend to be a case, sperm that if a source father,2 father, not the and under he could assert that he was sperm. of the record is unclear as to the source 1. The Equal Rights majority Amend- 2. The holds that it is violation maternity altogether, even women not to be able to disclaim ment for through egg it though produces the and the other carries one of them emerges canal —because a man has a gestation it from her birth acknowledge majority right challenge paternity. The fails to sperm challenges that fertilized the relevant a man is that is his what challenge egg. present there is no to the fact In the *25 into the world could come a child majority, of the the theories at birth.3 nor a father a mother with neither that there majority, assert noted, and the appellant As the in that genders, respective of the in the treatment inequality is deny that deny paternity statute to by man is permitted a —to procedure is a child because there father of the he is the there is argues that He4 litigated. that can be which denial maternity. deny can a woman by method which no similar case. However, present issue the that is not egg that denying produced that she woman is relevant that carried nor the woman appellant fertilized. Neither was that she bore and deny gestation period through the child If birth canal. it came out of her child and that delivered the the same asserting of the women were or either appellant woman bore the egg and that the other particular produced woman be, really father equivalent would if the it. The child and “birthed” egg, but that at the time sperm fertilized the acknowledged that his had a father and thus it to do so or to be he did not intend of intercourse provision father. If such him not to be the Court should declare mother, Equal Rights Amendment father but not a existed for a statute, by now exist for either might violated. But it does not for the mother but majority’s opinion it will now exist although with the Equal may well be a violation not the father —a situation equal guarantees treatment Rights Amendment. That amendment women. men as well as today whom the majority's that the mother from With the decision (and apparently the to be considered the mother child is delivered is not mother), opens the Court egg be considered the donor of the is not to (or persons will very possibility completely disinterested up real instance, could) an entre- of children. For commence the manufacture donor, egg sperm with an preneur contract could contract with assembler, donor, carry a woman to with an contract with contract gestation period, a child could be manufactured through the put up then be nor a father. The child could with neither a mother business, spirit of American adoption price a new in the at a —and who, is, course, if if it can be determined ingenuity, is created. That is, any entity, custody of the child. This I anybody would have realize, why thought but, will virtually incomprehensible to reasoned — way "slippery something happen on the down the it not be that can majority? slope” created and, plaintiff case arrangements is the in this 4. The man that made the sperm. perhaps, donor of the issue that exists in paternity litigation, majority might a point. majority have fails to in its opinion, What realize doing is that what man is when he challenges paternity particular that he denies his in fertilizing egg involvement thus particular he asserts he is father of correct the child—a man is not no asserting the child has father at all. does,
In the present majority what the is to establish as a matter of that it public policy possible for there to be a *26 i.e., maternity, denial of all that is no there mother at all at birth, not that a particular woman is not the mother. The essence, majority, holds that if do not you intend to be the mother, you should not be as responsible a mother. There are (and tens, if probably thousands, not hundreds of of fathers well) certainly mothers as who did not intend to at parents be the time of the actions that led to conception, who have been judicially determined to be for responsible support they did not intend to majority’s conceive. With the decision if a today, genetic birth mother does not and/or during intend to act as a mother this manufacturing process— they have no as a responsibility Presumably, mother. now both fathers and mothers (participating invitro fertilization intercourse), or sexual if they enter into contracts or other or writings agreements, that neither providing intends to be a parent, just or in acts engage any agreement, without in which (because conceived, a child is the mother and the father he well) must equally be treated can claim that no one should children). responsible for the rearing support of the Presumably, such only under circumstances the responsibility for the of children rearing would be the State’s.
If interpretation statute, ever there was a strained aof majority’s attempt (1982, 2005), Maryland construe Code 4-211(a)(2)(ii), § which allows the issuance of new birth certifi- cates when a court “an enters order as to the of parentage” child, as contemplating the issuance of certificates birth showing birth, that a child had no at mother is it. The majority recognizes this to be the case when saying: “The statute, paternity clearly, contemplate did not many poten- technologies, issues arising from these new legal tial issues the laws are rewritten continue to arise unless that will Ante at technologies.” new light construed these the reach of the changing A.2d at 122. Yet it sets about fathomed, however, because, not been statute “What has today.” Ante at majority at Then the A.2d exists public policy permitting manufacturing new creates children, saying: written, statute, as paternity provides
“Again, the
genetically
parent-
unlinked males
avoid
opportunity
females do
have
age,
genetically
while
unlinked
any
found
action
option. This Court has
same
on,
basis,
State,
imposes a burden
without a substantial
sex,
other,
and not
violates
grants
a benefit
one
Maryland Equal Rights Amendment.”
(footnote omitted).
279-80,
Ante
I point to possibilities dissent, discussed even though some may remote, consider them to be to highlight why presented the issues here should be left to Legislative Branch to first entity resources, address. That has the via commissions, studies and better access to ethicists and social scientists, like, fully explore the full range questions surrounding this issue and similar issues that will inevitably occur in the future.5 This Court lacks simply resources available to the General Assembly. recognize
5. Other countries the need for ethical overview of new and emerging techniques. England, fertilization In in an article entitled prospect conception, The. the author notes: of all-female seeking permission "Scientists are produce synthetic ethical marrow____ sperm cells from a woman's bone "Creating sperm they from women only would mean would be able produce daughters____The brings prospect latest research female-only conception step closer. process "We applying approval. are in the for ethical “Whether the develop techniques scientists will ever be able to help patients-male real depend legislation female-will on future preparing replacement the Government is existing as a Embryology Human Fertilisation and Act.” Connor, prospect Steve The conception, Independent, all-female 13, 2007, April http://news.independent.co.u k/world/science —technolo- (last gy/article2444462.ece 2007). April visited developing With the children, manufacturing science in the area of problems and with the expanding populations, associated with respectfully I suggest would uniquely that courts are unsuited to lead the ethical debates that lie in Better, view, my the near future. courts, position would be a where the concern, great initially as with most areas of social defer to the processes legislative important branch where all of the issues can *28 debated, rationally forefront, be charging instead of courts generating thus the debate as a reaction to their decisions. The issue today before the Court simmering has not been unanswered for decades for to view, if there deference In ever was instance my oppor- it an government permit of Branch Legislative the —to Instead, this less than is case. tunity public policy to set —it elections) (in are, in judges, es- contested seven unelected of sence, for the this good policy people that it is stating public have manufacturing of children who no to the permit State today The majority the of birth. mothers —even at moment these, as a mother from eliminates, in circumstances such going for is depend support. What upon whom a child could in that the happen, if fact men are afforded the same case are due women? There says present the majority upon could depend no whom the child upon would father be could no mother whom child de- upon for support —and has today decision the Court renders broad conse- pend. The for whom support State must children quences of is another support. there limited or no This are means Legislature determine issues relat- reason to defer to the —to children, resulting of State ing to the interests best position majority if were to be law responsibility of this State. replete is
Additionally, relating the literature to families having the value of fathers as a respecting with conclusions family from the part process life-available birth Certainly similar, greater, is value in child. there even now, having rearing mothers involved of children. Until necessary presume thought specifically I it was obviously in that mothers relate such issues females were present according at birth. But with this going to be just is to no a majority, petridish. there mother — contemplate occur only might One has to what as child matures, in order to that this issue is best left to the believe people. representatives happens What when area present asked to a birth certificate at customs (until foreign country that is all that was recently required some) countries, many citizens in and remains so American it; Assembly ignores shows while the General far as record any this issue been raised in forum in this State. first instance has *29 inspector and a customs sees that the birth certificate indi- person cates that the in front of him or standing her states that the has no even no person mother —or father mother? What when the child such happens presents a birth certificate (or inside) to authorities attempt outside this State in an passport? when acquire happens What such a certificate is in presented processes the admission of colleges presented when one wants to in the armed enlist services? How is the going adversely to be its throughout minority affected no from support when it has mother whom can be obtained— and no mother at all? There are many why reasons it Assembly General decide that is in the might best interests surrogate children have a or donor mother’s name on a that, if birth certificate and afterwards she could establish that obligations mother, she should not have the aof she could seek the termination of her status in order legal end her responsibility. But Court assumes the policy mantle instead.
Certainly, there can be developed respect answers in to all of these questions many others that exist that I may But, presented. courts, Court, have not including this are uniquely unsuited for the tasks will I that lie ahead. differ from in the my colleagues so I majority, much because believe them to necessarily wrong their ultimate result (as it long applied men), as will be equally but because I issue, think are they in the of it. wrong doing This and the ones, arise, many similar will now are best left to those who closer to people are than those of us in our so-called “ivory (although argued towers” could be that our towers red) are who mahogany are removed from constitutionally of the people State. view, By holding, majority, its in my under the circum- here, stances of the issues has presented princi- discarded the ple judicial restraint favor of one improperly usurps power the General Assembly. Somewhere this mad society rush which our at a engaged, time when increas- ing population many problems, contributes world’s are we say, “What occasionally pause should judges even doing?” trial court finding
I would affirm the the Judicial Branch does not lie within of this issue resolution Branch. Legislative but within the government RAKER, J., HARRELL, J., which Opinion by Dissenting Joins. persuaded Majority that the we are because
We dissent because, on incorrect, but rather necessarily is opinion *30 Majority us, unpersuaded are the we record before necessarily must be decided question correct or the opinion is conundrum. explain seeming hasten the present. at We judicial Mary- a gloss Majority opinion supplies The ostensi- paternity,1 for of statutory land scheme establishment of equal the statute violative declaring in order to avoid bly a it indicates otherwise principles, conclusion protection challenge frontally. Maj. the if to confront would reach forced titled, Family Chauvinistically of Law Article of the Subtitle 10 the 1. messages about ("Paternity Proceedings”) indeed sends mixed Md.Code father, Although parent, of and mother. of titles establishment the purposes impose on and claiming one is "to the mothers of its obligations out the basic fathers of children born of wedlock (§ 5-1002(b)(2)), responsibilities parenthood” of most of mecha- resolving questioned parenthood are framed in questions of nisms for father, Majority opinion accu- ascertaining as the terms of who statute, state, rately its current is a points out. It is obvious that the process simpler regarding of human product scientific times historically question, reproduction. Paternity was the usual where concerned, coupling was a father's or because unmarried adulterous leading a often under the cover birth occurred contribution (literally giving a birth to the figuratively), while mother’s darkness hospital traditionally bright lights of a room occurred under the midwife, gave eyes though always not so. That a woman or the of a undeniable, often largely was while who the father was was birth subject advances in the of some contention. It is now undeniable that challenges reproductive technologies have new science of created many premises underlying certain amount obsolescence points opinion presently. Majority paternity it exists statute as action, legislative review and well. The situation cries out that out necessarily point certainly judicial this but intervention at on the us in this case. record before 279-84, op. at 928 A.2d at If actually 122-25. confronted with question evaded, constitutional that appropriately may be we among count ourselves the last who would criticize such a jurisprudential side-step. The specific question Majority opinion being raised, conceives properly, as apparently Appellant genetically is: “Must of a name unrelated fetus, gestational host of a with Appellant whom contracted to carry in vitro fertilized embryos term that resulted in born, children being listed as mother on the birth at Maj. certificate?” 923 A.2d at op. analysis 117. The issues, which the Majority opinion explores engages deep with ripples extending beyond well those raised on the record before not set us. We should sail prematurely upon great legal and societal ocean without better global positioning system (e.g., thorough opposing briefs and a well-developed record) Instead, as a guide. we should vacate decision of the Circuit Court for Montgomery County and remand for further proceedings.
This case proceeded essentially what players as tennis call a is, walkover. That was there no other opponent side net; person entity expose no Appellant’s or test contentions, legal; factual or a situation which the Majority opinion sweeps up simply and describes “the unusual procedural posture Maj. of this op. case.” 923 A.2d at Appellant, sperm unmarried contributor of *31 was in a laboratory used to fertilize the eggs obtained from donor, the unmarried two egg page filed a petition the County Circuit for Montgomery Court asking, among other things, Holy Hospital Cross to report be “authorized” the Maryland Division Vital Records that twins the bom to a third party surrogate “carrier” the fertilized embryos have no mother. Appellant sought designated as the father and the his assigned children No equal surname. protection argument, expressly implicitly, was advanced. affidavits, Accompanying petition his were three one from Appellant, donor, one from egg the and one from the surro- gate carrier. donor, egg
The a friend of on Appellant, attested 6 August 2001 she was unmarried at the time of donation and that that, it was understanding if, as, her and when viable embryos eggs Appellant’s of her joining from the were created term, embryos carry would some other woman sperm, child(ren) biological registered as will be and “the child(ren) attempt surrogate,” with father as mother on surrogate’s name to delete the thereafter made the birth certificate.2 Holy the children at who birth to surrogate, gave
The affidavit, was not that she Cross, August in her 24 stated to me on children born way “in related any genetically want “to be named that she did not August 2001” and ” She consented birth certificates.... any way [their] Appel- that of Appellant. Her affidavit and sought by relief then-counsel, who Appellant’s to before lant were subscribed any written contractual copies No notary public. served as the surro- Appellant, donor agreements between and/or to, in, alone attached alluded to let gate carrier were alleged in consent, or No averments were affidavits. petition, support- affidavits, or as to consideration consent petition, understandings as stated undertakings and ing alleged denied, was petition The participants. three between August court by succinct order of dated hearing, without on 6 2001. September and filed a motion for filed September Appellant On or about (the reconsideration, person his same through then-counsel sup- represented filing original petition who him surro- and the porting papers Appellant’s and who notarized affidavits). allegations reiterating Besides gate’s contended: original petition, Appellant’s then-counsel Petitioner request The denial of Petitioner’s leaves Court’s birth posture. in a awkward surrogate legally and the Peti- subject will now bear the certificates for the children Moreover, expressed language she no in clear wanted the donor relationship responsibility any from the fertilized children born my any birth eggs. Specifically, stated “I not want name on she do *32 certificate(s) my placed get on such ... and if name does somehow certificate, I it removed.” birth want tioner’s name as father and name as the surrogate’s mother.
Thus, operative the Court’s action has effect of allowing records; inaccurate information be filed in official State and of bestowing parental and rights responsibilities on the who surrogate biological adoptive parental has no link to the children —and expressly made clear that she did not doing, want In so any. operative effect the Petition- er is to diminish his to a parental position sole/exclusive shared his parental position rights which and responsibili- (even ties only point extend to the where hers though they nonexistent) are legally biologically begin. opera- and tive effect the Court’s denial also impacts future inheri- subject tance children and those the surro- gate’s children, own biological they even are no though way parties this matter. persons sought,
None of the even expected, and do Indeed, want result that very will occur. purpose the Court was to petitioning obtain the court’s assistance in clarifying parentage, accurate to ensure that correct State, information would be filed with the and to avoid precisely the result come to pass which would the absence of the Petitioner instituting this matter.
The entire thrust of the reconsideration motion was whether reporting surrogate the children’s mother was inaccu- protection rate. No equal argument regarding application of the paternity statute was mounted.
In response reconsideration, to the motion for the Circuit order, Court issued dated and on 4 October 2001 filed October declaring Appellant the girls father of the twin Holy directing Hospital Cross issue certificates birth surname, for the with Appellant’s children including but surrogate name birth mother’s as their On 1 mother. Novem- 2001, Appellant’s ber then-counsel filed a request hearing on the request, reconsideration complaining he did motion, a hearing receive on the although one was requested, the Court’s 29 August order relief its 2 denying some, October 2001 order granting but not all of the relief
307 or inconsis- unclear somewhat originally, “seem[s] sought 3 tent.” 10 set for for was on the motion reconsideration hearing A her appear- counsel entered Replacement December (and on represent him continued to for who Appellant ance on which day separate on 7 same appeal) December No consid- surrogate. for the appearance entered an counsel children was evident. for the appointing eration counsel for Janu- on was rescheduled hearing reconsideration ary 2002. memorandum, he hearing Appellant’s January
In protection chal- as-applied equal raises a facial or nowhere there were arguments His statutory to the scheme. lenge was not the mother and surrogate” was “gestational that the children; therefore, it was way biologically in no related of the children not have in the best interest asserted be thus Appellant her name on birth certificates. appear the children argued the interest of standard best was his result. It only in a that desired way albeit benefited time in the memorandum, for the first in the contended to the into variation Appellant that “entered proceeding, surrogate surrogacy ‘gestational contract called traditional claimed, it was while arrangement, In such an contract’.” may biologically prospective parents or both of the “one child, provides only a ‘host surrogate [t]he related the memo- of the contract was attached to copy uterus’.” No randum, hearing. nor was it offered at hearing previously the 14 denied January
At reconsideration, Appellant’s for new counsel uttered motion first time in this record: “equal protection” the words I it a moment You take a father and as said putative can say you You if that child on him. can ago, you hang can father, court. We you to be the we will haul into don’t want it to the material. will match your genetic take We will may clarity inconsistency. Appellant been have 3. We find no lack of get everything sought, he but he had no claim chagrined that he did not clarity consistency. to lack matches, if it child and you’re the father. You’re the It is at moment parent. that we can that the determine match, genetics obligations, that duties and attach parenthood individual. equal
You would have an protection argument you if said well, true not for the mother. It is passage mother, down the birth canal that makes the mother the genetics. Further relevant reference does until appear pages ten later when transcript Appellant’s obliquely counsel *34 doubt) (giving her the benefit of much that: alludes The legislature past has tried over the two no decades less than five times to deal this they with issue and have not been able to do so when they passed way, have laws one the Governor has them. they passed vetoed When have laws way, they the other in fail one House or the other. It is— there is a I paucity law. with that. agree
But should Courts upon be called to deal with issues these legislature when the doesn’t? the has to Sometimes court lead and can all we think of the cases where the Court has They done that. all do it in the areas of Civil Rights and Equal and Rights that where this case is.
Counsel for the than surrogate, other a “me too” adopting approach regarding said, what Appellant’s counsel did not mention, explicitly or an implicitly, equal protection argument. filed legal She no memorandum and any failed to invoke legal essence, authorities. In the one-sided argumentative presen- tation to the Circuit essentially Court was purely policy- driven.
In the Circuit Court’s 9 July 2002 bench ruling reaffirming
and
its
explaining
earlier denial of the motion for reconsidera-
tion,
stated,
the
judge
trial
things,
other
he
among
was
record,
concerned
with
greatly,
this
it
in
whether was
best
they
interests
the twins that
effectively
be declared
saw,
motherless. The
also
as
Court
partial solution
by
complications expressed
Appellant
surrogate
and the
moth-
er,
prospect
a consent
petition
terminate
surro-
(but
on the
her named
which would leave
gate
mother’s
“mother”).
the trial
clear that
It seems
birth certificates
legal
the surrogate’s
perceive Appellant’s
did
judge
challenge
protection
an
seriously
equal
include
arguments
such a contention.
not address
because he did
by Appel-
Appeals
of Special
to the Court
noted
appeal
no
appeal
filed
joined by
surrogate.
She
lant was not
Court, indicated
counsel, in a
Her
letter
no brief.
brief
join
that “she wished
nonetheless
us, on the Court’s
Thus,
when taken
Appellant.”
act,
court could
initiative,
appellate
the intermediate
before
view)
(in our
brief
inadequate
proceeded
only Appellant’s
with
argument.
enlightening oral
his not-much-more
record,
that,
equal protection
on this
We are satisfied
statute,
or as
factually
Maryland paternity
challenge to
argued, or decided
properly presented,
neither
applied, was
of how
the one-sidedness
Court. Combined with
the Circuit
Circuit Court
before
proceeded
the matter
record,
Court,
unwilling
we are
to exercise
gaps
and the
8-131(a) (“[o]rdinarily, the
Md. Rule
granted by
discretion
plainly
any
not decide
other issue unless
appellate court will
by the
to have
raised in or decided
appears by
record
been
if
court,
Court
decide such an issue
neces
may
trial
but the
court or to avoid the
guide
the trial
sary
desirable
*35
of another
to reach and decide the
delay
appeal.”)
and
expense
Majority opinion.4
the
by
issues decided
support
woefully inadequate
Appellant’s
in this Court is
brief
by
equal protection
Majority opinion. His entire
license taken
argument
his brief is as follows:
in
by
parentage
the court below do not
statutes
enforced
similarly
protection
women
equal
of the law to men and
afford
situated.
deny parentage.
gestational
If
carrier was a man she could
established,
genetic
if
be
she would be found not
And no
link could
parent
so with a woman under
the matter would end. Not
be a
and
ruling.
lower court
be
birth certificates.
She has asked to
removed from the children's
maternity.
legal
is
denying
is established as
fact
she
In effect
It
child,
be
genetically
yet she
forced
related to either
legal
of
children.
state to be
mother
these
present
The condition of the record in the
case is reminis-
cent of that confronting the Court of
in
Special Appeals
v.
County
Dintaman
Board
George’s
Comm’rs
Prince
of
of
County,
Dintaman,
345,
(1973).
In
Md.App.
As Vuitch Judge Murphy Chief said for this Court State, at Md.App. pages 397 and 271 A.2d 376: page hand, man, being The doctor challenge other could succeed, paternity genetically because he is not related children. disparate comport Such treatment does not with Article 46 of the (2001) Md. Dec. of R. "[e]quality rights art. which states that abridged under the law shall not be or denied because of sex.” interpretation urged by § Appellant, Under of the 4-211 no exist, equal protection argument such non-genetic would because a gestational apply parentage carrier could to the court for a order and upon one showing genetically receive that she was related parent. never intended to be its already body jurisdiction governing There lawof in this protection non-genetically related individuals who parent desire to fulfill the role of for a child. No support argument. cases are offered to effort No is made to any history detail legislative addressing problems failed envi- *36 by Appellant, boldly sioned which he claimed to at be the case hearing reconsideration in the supra Circuit Court. See at 6.
3H foolhardy in extreme undertake But it would be questions upon of such constitutional complex resolution substantively deficient as procedurally record as questions, us-one which the constitutional now before trial, raised for the though readily apparent prior were case-in-chief, its time after the State had concluded first by inappropriate (generally motion only and then a front far more limited alleging unconstitutionality along aired), presently sought than that submit- be thrust comment, illuminating argument. Wheth- ted without constitu- judge actually appellant’s the trial considered er the record since claims cannot be ascertained from tional thereon, and motion he made no comment denying concluded, the consti- quite properly, that may well have juncture not raised at that questions tutional could be Of proceedings by judgment acquittal. motion for that a course, is better settled than rule nothing constitutionality as to the a statute will question and decid- appeal properly considered when not raised by court. ed the lower State, 350-51, at v. Harmony
Id. 303 A.2d 444-45. See also (1991) (internal 306, 316-17, Md.App. A.2d omitted): footnotes 8-131(a), ordinarily, do not
Pursuant to Md. Rule we by record to any “plainly appears issue unless it decide in or It is have been raised decided lower court.” never argument clear that the limitations was “decided” “directly passed upon” by circuit court. Nor was Indeed, in the argued ever traditional sense. question preserve mentioned “To an issue for barely was below. review, it first presented, must have been with appellate the trial An remark that particularity, court.” offhand might of limitations or like that” something the “statute to allow play” simply particular enough “come into party bring argument review. A must his appellate enough particularity attention of trial court with first, it, is an issue before the court is aware there secondly, parameters are. The trial what issue
court needs sufficient information to allow it to make thoughtful judgment.
# [*] [*] required[ present He was to to the issue the trial court ] with enough particularity to allow a upon reasoned decision so, the matter. Because he to do will failed we not consider the issue on this appeal.
We believe the interests children need to heard be and considered. We would remand the case and direct the trial judge appoint to counsel for the compel Appel- twins and lant to their pay Only counsel’s fees. legal might then record made which upon might be we be satisfied that we go Majority should opinion goes. where the Majority opinion’s disposition of the best interests child(ren) as “inappropriate” (Maj. 292-93, standard op. at 130-31) 923 A.2d at to the context of this case depends in large measure on its declination grips come to with the legal meaning “mother,” of “parent,” “father,” light the admitted and relevant scientific advances not apparently contemplated by the statutory scheme. The Majority’s analy- 284-93, 125-31) (Maj. sis op. 923 A.2d at beggars meaning key of these concepts, and focuses instead analyt- ical custody differences between and visitation cases involving parent-versus-parent on one hand and parent versus non- parent on the other. The Majority opinion overlooks that it Appellant injected was who the best interest of the children standard in this emotional, case. We can think of a number of material support, possibly why may medical reasons best interests these children be declared It motherless. judicial should be left entirely conjec- ture however, and creativity, what the universe of those reasons be. may begs This record for further development before we come to grips with the issues decided Majority opinion. Appellant If wishes through us lead Maryland uncharted waters an area Legislature where the societal legal and competing to consider suited is better to do a so, he needs unwilling do values, have been may but vote. us wants our if he persuading job better joins say me to she authorized has RAKER Judge this dissent. notes law exists that would give trial power court from remove mother’s name Second, removing birth certificate. it notes that the name of from the surrogate birth certificate is inconsistent with the (“BI C”), “best interests citing, general child” standard ly, “health reasons.”4 appellant’s is that primary par contention entage statutes Maryland, enforced trial court below, “afford equal protection do not of the law to men and similarly women Maryland’s Rights situated.” Equal Amend (E.R.A.), ment Article 46 of the Maryland Declaration of