- The Washington Times - Thursday, May 17, 2007

ANNAPOLIS — No mother on a birth certificate? It can happen for a child born to a surrogate mother who has no genetic connection to the baby, Maryland’s highest court ruled Wednesday in a sharply divided decision.

The unusual case of twins born in the D.C. suburbs in 2001 involves a woman, not named in court proceedings, who carried surrogate babies for a father called “Roberto d.B.” The twins were the result of an egg donor and the sperm of Roberto d.B and had no genetic relation to the woman who gave birth to them.

In a 4-3 decision, the Maryland Court of Appeals ruled Wednesday that the babies are not required to have a mother listed on birth papers. Both the surrogate woman and Roberto d.B did not want her listed as the mother. The egg donor was not involved in the case.

“Maryland’s breaking ground here,” said Dorrance Dickens, a D.C. lawyer who argued the case for Roberto d.B and the surrogate mother.

Though judges routinely allow blank spaces for mothers on birth certificates in surrogate cases, Mr. Dickens said Maryland’s court is the first to use a state Equal Rights Amendment to make the decision.

In a 56-page decision, the majority argued that a man who can prove he has no genetic relationship to a child can be ruled not to be its father, so a woman should have the same ability.

Chief Judge Robert Bell, who wrote the decision, candidly conceded that the case was unusual. Paternity laws, judges noted, often don’t take into account modern technology.

“What had not been fathomed exists today,” Chief Judge Bell wrote. “The methods by which people can produce children have changed. … The paternity statute, clearly, did not contemplate the many potential legal issues arising from these new technologies, issues that will continue to arise unless the laws are rewritten or construed in light of these new technologies.”

The case began when Holy Cross Hospital, where the twins were born in 2001, placed the woman, called the “gestational carrier,” on the birth certificate as the mother, against her wishes. Both petitioned a Montgomery County judge to change the birth certificate, but the judge refused.

“The law in Maryland is that you have to put the birth mother’s name on the birth certificate unless there’s a court order otherwise, so what we did was petition for a court order otherwise,” Mr. Dickens said. “We hit a judge who basically said that, ‘I understand everybody else is doing it, but they’re walking off a cliff, and I’m not walking with them. I can’t see in Maryland law where I can do this.’ ”

The state did not argue against the surrogate mother. The majority of judges decided to clarify Maryland law to allow blank spots in mother categories on birth certificates.

“She had a reasonable expectation that her role in the lives of these children would terminate upon delivery of the children, and that the faithful performance of her duties under the agreement would not permanently impact her life, nor the lives of her family,” Chief Judge Bell wrote.

Not all judges agreed. In a sharp dissent, Judge Dale Cathell said Roberto d.B had the twins “manufactured” and then didn’t want them to be listed as having a mother.

“The majority, in essence, holds that if you do not intend to be the mother, you should not be responsible as a mother,” Judge Cathell wrote. “There are probably tens, if not hundreds of thousands, of fathers [and mothers] who did not intend to be parents at the time of the actions that led to conception, who have been judicially determined to be responsible for the support of the child they did not intend to conceive.”

Mr. Dickens, the lawyer who argued the case, argued that names on a birth certificate don’t mean a child has no mother. It simply means that the woman who gave birth to the twins should not be required to have a legal relationship with the twins if they aren’t related to her.

“We have birth certificates that don’t have a father. Well, you’ve got one, it’s just not listed here,” Mr. Dickens said.

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