State adopts surprising surrogacy rule

A recent court case from another state may influence how Marylanders who cannot have biological children of their own attempt to build their families.

A New Jersey court concluded that while the husband of a woman automatically becomes the legal father of that woman’s child when the couple uses a sperm donor to conceive, a woman must complete a child adoption in order to have legal rights to a child that does not come from her egg.

The parents in this case used a surrogate mother and a donor egg to conceive and carry “their” child to term, and they took several steps to make sure that the surrogate mother would make no claim to have parental rights over the child.

Still, when the married woman’s name appeared on the child’s birth certificate, the state asked that a court remove the name, claiming that in order to have rights to the child, the mother would first have to adopt the child. Since the courts agreed with the state, the rule of law in New Jersey now stands.

Unlike other states, Maryland has passed no statutes regulating the use of surrogate mothers to carry a child to term for another couple. In Maryland, courts will determine the “intended” parents and then require that a birth certificate be prepared to reflect that fact. It is possible that, had this case been decided in Maryland, the result would have been different.

Still, surrogacy in Maryland carries with it its own set of problems. Couples who struggle to have biological children of their own may also when to consider using Maryland’s adoptions both to grow their families and to give a home to a child who desperately needs it.


The New York Times, “Court’s split decision provides little clarity on surrogacy,” Kate Zernike, Oct. 24, 2012.

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