Maryland Surrogacy Law
Author: James Shrybman, Attorney at Law
Maryland is a surrogacy "friendly" state. It doesn't have any statutes permitting, prohibiting, or regulating surrogacy. It is surrogacy "friendly" because the only law governing a surrogacy arrangement are the terms of the surrogacy contract written by the people who are involved.Not only are there no laws specifically addressing surrogacy, but there are also no appellate court opinions addressing the subject. There is one opinion in a county circuit court which received considerable attention in Maryland legal publications. The judge wrote a lengthy analysis which can be summed up in one critical statement:
"...the Court holds that it is for the Legislature, not the courts, to decide whether surrogacy contracts are illegal in this state."
Members of the Legislature have, from time to time, attempted to pass laws specifically addressing surrogacy. A bill was passed in l992 which would have had an adverse impact on surrogacy, but was vetoed by the Governor. The Governor wrote a letter to the President of the Maryland Senate explaining his veto. The closing sentences capture the thrust of his remarks:
"...I am unclear as to what actual effect the bill would have, other than perhaps to discourage infertile couples from pursuing the option that surrogacy provides. The creation of a family is a personal decision I think best left to the individuals involved."
No bill has been passed by the Legislature since, and none was even introduced in the legislative session which ended before the summer of l996, none has been passed through 2000.
Let's look at some of the other reasons that make Maryland surrogacy friendly:
In gestational surrogacy cases, the courts have been helpful in granting orders to ensure that the birth certificates for children born in Maryland to gestational carriers reflect the correct parentage. . .regardless of the residency of the surrogate, or the intended parents, or the donor if any.
An important feature of Maryland law for artificial insemination surrogacy is found in its adoption law. In Maryland, a non-resident can file a petition for adoption in a Maryland court, if the birth mother (which would be the surrogate) resides in Maryland. People engaged in an artificial insemination surrogacy will eventually need the wife of the father to file an adoption petition in order for her to become the legal mother, instead of the surrogate remaining as the legal mother. If the surrogate resides in Maryland, the wife can adopt her husband's child in a Maryland court, even though the wife lives in a different state or a different country.
Nothing in Maryland law precludes gay or lesbian couples from engaging in surrogacy arrangements. In fact, the Maryland Court of Special Appeals has ruled that two unmarried individuals in a "stable" relationship may adopt a child. This decision paves the way for adoption of a child by the parent's partner.
While Maryland has no specific laws addressing surrogacy, there has been a small but significant change in the Maryland Rules approved by the Maryland Court of Appeals regarding court procedures in adoption cases. Rule 9-103 provides the requirements that must be included in an adoption petition. One of the requirements is that the petition must state how the child was identified or came to be in the custody of the person asking to adopt. That provision goes on to require the names of the "intermediaries or surrogates" and "a copy of any surrogacy contract." This is significant because it is the first time the words "surrogates" and "surrogacy contracts" have ever been affirmatively stated in Maryland law.
Maryland is a good state for surrogacy arrangements for people from Maryland or elsewhere!
The above overview of Maryland law regarding surrogacy does not constitute legal advice and should not be used as a substitute for consultation with a Maryland attorney.
November 2000
Copyright 1996. The American Surrogacy Center, Inc.(TASC), Kennesaw, GA
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