The president of the University of Notre Dame from 1952-1987,
the Rev. Theodore M. Hesburgh, who was honored recently when he
turned 90, gave some advice a few decades ago to an alumnus who
inquired of him, “What’s the best thing I can do for my children?”
Father Hesburgh replied, “Love their mother.” After reflecting on
the profound wisdom in this simple statement, what shall we say of
a father who, for six years from the birth of his twin daughters,
engaged in litigation to deprive them of having their mother listed
on their birth certificates?
And what shall we say of a court, the highest court in Maryland,
which not only indulged this father’s desire but did so without
appointing counsel for the children, handing down its decision in
In re Roberto d.B, on May 16, 2007, the Wednesday after
Mother’s Day?
The unmarried man, Roberto d.B, had made arrangements with an
unmarried woman friend to have her eggs donated to him for the
purpose of being fertilized in vitro (outside her womb).
(It is unclear whether the eggs were fertilized by his sperm.) And
he had made arrangements with a second woman (the “gestational
carrier” or “surrogate mother”) to have her carry the embryos to
term. (Although the decision states she had family
responsibilities, it does not state whether she was married or had
sexual relations with any man during the relevant time; if she were
married, there would have been an issue about whether her husband
was the father of the twins.) When the second woman delivered the
fraternal twins in 2001, the hospital reported her as the mother.
The man sued to have her name removed and his name listed as sole
parent, the father. They both argued that she had no genetic link
to the children and never intended to be their mother. The trial
court agreed to add his name as father, but to retain her name as
mother. An appeal was taken.
The highest court in Maryland agreed with the father in a 4-3
vote but, as Judge Harrell’s dissent points out, this was a
“walkover.” There was no opposition. There was no counsel for the
twins or for the trial court.
The court held that the state statutes that allow men to deny
parentage should be construed, as required by Maryland’s Equal
Rights Amendment (ERA), to allow women to deny parentage: “[T]he
paternity statute, as written, provides an opportunity for
genetically unlinked males to avoid parentage, while genetically
unlinked females do not have the same option, in violation of the
Maryland Equal Rights Amendment.”
ASIDE FROM ANY RIGHTS of the adults, what about any right of the
children to have a mother named on their birth certificates? The
trial court had ruled that having no mother named on the birth
certificate would not be in the best interests of the children.
“Best interest of a child” is a conventional standard in family
law. The majority opinion in the appellate court held, however,
that the “best interest of a child” did not apply in this case
where the gestational carrier was “a third party [who] desires to
relinquish parental rights, not assert them.” In other words, where
a person is alleged to be a parent but can prove that he or she is
not a parent, it is not in the best interest of the child, indeed
the child has no interest, in having that person named as a parent.
Who can quibble with this statement as a general principle? But in
this case the woman admitted that she was the gestational carrier
and the hospital that named her on the birth certificate was a
witness to the fact that the children came from her womb.
It is clear that the court implicitly held that, although the
twins were delivered from the womb of this woman, she was not their
mother. There can be only two reasons for so holding. One is that
she did not intend to be their mother, but the court expressly
states that her intent is not a factor in establishing or not
establishing parentage — any more than it is for men. The
alternative justification for this implicit holding is that she was
not genetically linked to the children and therefore could not be
their mother. (The only evidence that she was not genetically
linked was not scientific, but in the form of sworn statements by
the father, gestational carrier, and egg donor as to how the
gestational carrier became pregnant.) Although the court stated
that “[t]he resolution of this case does not require that we
re-define the term, ‘mother’…,” it is clear that the court
allowed sworn statements regarding genetic linkage to overcome the
uncontested fact of delivery from womb.
Is not the egg donor the mother? She would be genetically linked
to the twins. And she filed papers admitting this. The majority
does not address this question presumably because she was not a
party on the appeal. (She was not a party because her
name, unlike the gestational carrier’s name, was not on the birth
certificate and neither the hospital, the putative father, the
gestational carrier, nor the trial court argued for placing her
name on the certificate.) As with the gestational carrier, there
are the same two possible reasons for finding that she would not be
the mother. Judge Cathell’s dissent argued that the majority
implicitly held that the egg donor was not the mother because, as
she stated, she did not intend to be the mother. An alternative
possibility is that women who are genetically linked, but do not
deliver, are not mothers. Again, the majority’s words about the
gestational carrier would apply here too; the majority denied that
intent was a factor in determining parentage and the majority was
not redefining motherhood.
If neither the gestational carrier nor the egg donor are
mothers, then who is mother to these twins? No one. As Judge
Cathell observes in dissent, the result is not a finding that a
particular woman or particular women are not the twin’s mother, but
that the twins have no mother. I can think of only three
circumstances where a child is motherless. The first is where the
child, typically a newborn not born in a hospital, is abandoned.
The second is where the child becomes separated from his or her
mother and is not claimed — for a variety of reasons including the
mother’s inability to claim the child due to her death or mental
illness. The third is where a child is abducted from his or her
mother (hence the term “kidnapped”). Now, however, we have a fourth
circumstance, namely, where a court instead of naming either the
genetic or gestational women as mother (or both of them), rules
that neither is.
These twins are half-orphaned — by the will of their father,
the will of the two women who procreated them, the will of the
court. They are motherless by decree. Oliver Wendell Holmes once
said in an oft-quoted statement that adorns the walls of the main
Justice Department building, “The life of the law has not been
logic; it has been experience.” In this opinion, Maryland’s highest
court refutes that notion. Maryland’s law does not result from the
experience of men and women having children through the millennia,
the experience of a child born of a woman having that woman named
as the child’s mother. Maryland’s law results from the twisted
logic of the majority that would deprive children of a mother
because that’s the way the adults wanted it.
In first century Palestine, it was unthinkable that a father
would give his child a stone when he asked for bread or give a
snake when he asked for a fish. (Matt. 7:9-10; Luke 11:11-12.) But
now, if a child asks his father and the court to identify his or
her mother and list her on a birth certificate, they can
refuse.
THE OLD AFRICAN-AMERICAN SPIRITUAL begins its lament with
“Sometimes I feel like a motherless child.” These twin girls, now
six years old, will some day want to know the identity of their
mother(s). In a recent article in the Washington Post,
a girl who is the offspring of an anonymous sperm donor, one of the
first such children to reach her teen years, complained of being a
fatherless child and criticized adults such as her mother involved
in assisted reproduction focusing on their needs to the exclusion
of the children. She declared her interest in identifying her
father. The international Convention on the Rights of the Child (to
which the United States is not a party) declares the right of a
child to know the identity of her parents (Art. 7, Sec. 1).
The rights of the twins in this case eclipse any contractual
arrangements between the three adults and the fertility doctors. No
one should be allowed to contribute to the procreative process and
then walk away from the human beings who result; no one should have
“a reasonable expectation that [their 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…” Of course, women have engaged
in intercourse with men to whom they are not married, hoping to
become pregnant and have a child, and they have had no desire to
have the biological father involved further in their lives. And of
course men have engaged in intercourse without intending the woman
to become pregnant and intending to become fathers. The law has
heretofore ignored these plans; these plans do not prevent the
child from suing the father for a declaration of paternity.
Clearly, none of the adults in this case ever loved each other
or intended to marry each other, or intended to procreate children
in the context of such love or marriage; they simply wanted to help
a man obtain a child. These twins are not bound by this court’s
decision; they were not parties. They will grow up and sue for
maternity, particularly if their relationship with their father
deteriorates through his death or illness or some other reason.
Roberto d.B, maybe you need not love your children’s mothers to
show them you care as Father Hesburgh would have advised you, but
you at least ought to list their mothers’ names on their birth
certificates.
