In Vitro Fertilization - Technological Developments Bring New Issues to the Courtroom

In In re Roberto d.B., 923 A.2d 115 (Md. 2007), the Maryland Court of Appeals for the first time addressed several issues related to in vitro fertilization. In this case, a man made a contract with a woman to carry to a term an in vitro fertilized embryo. The scope of the agreement was limited to birth giving and the surrogate carrier never asserted any parental rights.

The main issue in this case was whether the court had authority to order the Maryland Vital Records Division to remove the surrogate mother’s name from the child’s birth certificate. For several reasons the majority concluded that it did. First, the court held that under Maryland’s Equal Rights Amendment, females like males have the right to challenge their parentage. Second, having a mother’s name on a birth certificate was unrelated to the child’s best interest.

The Roberto majority opinion is followed by several rigorous dissents. For example, Justice Cathell fears that Roberto’s holding has created a profitable baby manufacturing opportunity. Specifically, he points out that through contracts with sperm and egg donors and a surrogate carrier, an entrepreneur can create a parentless child and profit from a costly adoption.

Special thanks to Tammy Gerhart (May 2008 J.D. Candidate, Texas Tech University School of Law) for her assistance in preparing this blog entry.