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.
James M. Thunder is a former general counsel of Americans United for Life and a former prosecutor of child abuse and neglect cases.
Read the entire article on the American Spectator website (new window will open). Reprinted with permission.