In Re: Roberto d.B.
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In re: Roberto d.B, No. 110, September Term 2002. Opinion by Bell, C.J. CONSTITUTIONAL LAW INTERPRETATION EQUAL RIGHTS AMENDMENT PARENTAGE Because Maryland s Equal Rights Amendment forbids the granting of more rights to one sex over the other, the p aternity statutes in M aryland mus t be constru ed to apply eq ually to both males and females. IN THE COURT OF APPEALS OF MARYLAND No. 110 September Term, 2002 In re Roberto d. B. Bell, C. J. *Eldridge Raker *Wilner Cathell Harrell Battaglia, JJ. Opinion by Bell, C.J. Raker, C athell and H arrell, JJ., Dissen t. Filed: May 16, 2007 *Eldridge, J. and Wiln er, J., now retired, participated in the hearing and conference of this case while active members of this Court; after being recalled pursuant to the Constitution, Article IV, Se ction 3A , they also participate d in the decision and adoption of this opinion. This case compels the C ourt to consider the ever-continuing development of artificial reproduc tive technologies. In the last two decades, methods of producing a child have advanced beyond the traditional realm. In a traditional surrogacy context, the egg donor, who is also the carrier of the child, or the gestational carrier, is artificially inseminated with the sperm of the intended father, carries the child to term , and then re linquishes p arental rights after birth, with the father ack nowled ging patern ity and taking cu stody of the ch ild; his spouse typically ado pts the c hild. In re Ma rriage of Moschetta, 30 Cal. Rptr. 2d 893, 894 (Cal. Ct. App. 1994) . In a gestational surrogacy context, the donated egg begins outside of the gestational carrier, who is impregnated with a fertilized embryo, often as a result of in vitro fertilization of the egg of the intend ed mother with the s perm of the intende d father. See, e.g., Belsito v. Clark, 644 N.E.2d 760 (Oh io Ct. Com . Pl. 1994); Johnson v. Calve rt, 851 P.2d 776, 77 8 (Cal. 1 993), cert. denied, 510 U.S. 874, 114 S. Ct. 206, 126 L. Ed. 2d 163 (1993); Soos v. Superior C ourt, 897 P .2d 1356 (Ariz. Ct. App. 1994). The gestational surrogacy context can involve anonymous sperm and egg donors, with the result that the child has no ge netic relation to the gestatio nal carr ier or the intende d paren ts. In re Marriage of Buzzanca, 72 Cal. R ptr. 2d 280 (Cal. Ct. App. 1998); Jaycee B. v. Superior Co urt, 49 Cal. Rptr. 2d 694, 695 (C al. Ct. App. 1996). The law is being tested as these new techniques become more commonplace and accepted; this case represents the first challenge in Maryland. The case sub judice presents a novel que stion of law , one of first im pression in this Court: must the name of a gene tically unrelated gestational host of a fetus, with whom the appellant con tract ed to carry in vitro fertilized embryos to term , be listed as the mother on the birth certific ate, when , as a result, children are born? The Circuit Court for Montgomery County held that it must. We s hall reverse . A. Because of the unusual procedural posture of this case, the facts are not disputed. The appellant, Roberto d.B., an unmarried male, initiated, on December 18, 2000, a medical procedure known as in vitro fertilization, with his sperm being used to fertilize eggs from an egg donor. The procedure resulted in two fertilized eggs. The putative appellee in this case is the woman with whom the appellant contracted to act as a carrier for any embryo that m ight be crea ted as a resu lt of his fertilization efforts so that they might gestate in a womb. Fertilized eggs were implanted in the appellee on December 21, 2000, and she delivered twin children on August 23, 2001, at Holy Cross Hospital in Silver Spring, Maryland. The medical records department of a hospital in M aryland is require d to subm it information regarding births to the Maryland Division of Vital Records1 ( MDV R ), a part of the Maryland Vital Statistics Administration. Maryland Code (1982, 2005 R epl. Vo l., 1 The Maryland Division of Vital Records, a division of the Maryland Vital Statistics Administration, according to its website, issues certified copies of birth, death, fetal death, and marriage certificates for events that occur in Maryland, provides divorce verifications, and provides information on procedures to follow for registering an adoption, leg itima tion, or an adju dica tion of patern ity. 2 2006 Supp.) § 4-208 (a) (4 ) (iii) of the Health-General A rticle ( HG ). 2 The MDVR, having 2 Maryland Code (1982, 2005 Repl. Vol., 2006 Supp.) § 4-208 of the HealthGeneral a rticle provide s, as relevant: (a) (1) Within 72 hours after a birth occurs in an institution, or en route to the institution, the administrative head of the institution or a designee of the administrativ e head sh all: (i) Prepare, on the form that the Secretary provides, a certificate of birth; (ii) Secure each signature that is required on the certificate; and (iii) File the certificate. (2) The attending physician shall provide the date of birth and medical information that are required on the certificate within 72 hours after the birth. (3) The results of the universal hearing screening of newborns shall be incorporated into the supplemental information required by the Department to be subm itted as a part o f the birth ev ent. (4) Upon the birth of a child to an unmarried woman in an institution, the administrative head of the institution or the designee of the administrative head sha ll: (i) Provide an oppo rtunity for the ch ild's mother an d the fathe r to complete a standardized affidavit of parentage recognizing parentage of the child on the standardized form provided by the Department of Human Resources under § 5-1028 of the Family Law Article; (ii) Furnish to the mothe r written info rmation pre pared by the C hild Support Enforcement Administration concerning the benefits of having the paternity of her child established, including the availability of child support enforcement services; and (iii) Forwa rd the com pleted affid avit to the D epartmen t of Health and Mental Hygiene, Division of Vital Records. The Department of Health and Mental Hygiene, Division of Vital Records shall make the affidavits available to the paren ts, guardian of the child, or a child supp ort enforce ment age ncy upon re quest. (5) An institution, the administrative head of the institution, the designee of the administrative head of an institution, and an employee of an institution may not be held liable in any cause of action arising out of the establish men t of p atern ity. (6) If the child's mother was not married at the time of either conception or 3 received this information, issues the birth certificates. Unless a court order otherwise provides, the hospital will report the gestational carrier as the mother of the child to the MDVR. HG § 4-208. Holy Cross Hospital followed this procedure. Neither the appellee nor the appellant, however, wanted the gestational carrier s name to be listed on the birth certificate as the mother of the children. It is the appellant s and the appellee s contention that the appellee was merely acting as a gestational carrier for children that were never intended, by either party, to be hers, and to whom she has no genetic relationship. The appellee doe s not wish to exercise pa rental rights to, or over, these two children, nor does the appe llant desire that she do so. The appellee contends that, under her agreeme nt, she had a reasonable expectation that her role in the lives of these children w ould terminate upon delivery of the children, and that the faithful performance of her duties under the a gree men t wo uld n ot pe rmanently imp act h er lif e, no r the lives of her fa mily. Thus, the appellee joined the appellant s petition to the Circuit Court for M ontgomery Cou nty, asking it to issue an accurate birth certificate, i.e., one that did not list the birth or between conception and birth, the name of the father may not be ente red o n the certi fica te without an affi davit of p atern ity as a utho rized by § 5-1028 of the Family Law Article signed by the mother and the person to be named on the c ertificate as the father. (7) In any case in which paternity of a child is determined by a court of compete nt jurisdiction, the name of the father an d surnam e of the ch ild shall be entered on the certificate of birth in accordance with the finding and order of th e court. (8) If the father is not named on the certificate of birth, no other inform ation ab out the f ather sh all be en tered on the certif icate. (Emphasis add ed). 4 gestational carrier as the children s mother. In the petition, they asked the court to declare that the appellant was the father of the children, and authorize the hospital to report only the name of the father to the MDVR. Despite the contentions of the appellant and appellee, the Circuit Court for Montgomery County refused to remove the appellee s name from the birth certificate and rejected the petition.3 The ap pellant n oted an appea l to the C ourt of Specia l Appe als. On our own motion and prior to proceedings in that court, this Court granted certiorari. In re: Roberto d.B., 372 Md. 684 , 814 A.2d 570 (2003). B. The appellant is th e genetic fa ther of the tw in children, having provided his sperm to fertilize donated e ggs. The e gg dono r, not a party in this case, is the genetic provider of the egg. The appellee is the gestational carrier of the fertilized eggs that developed in her womb, despite contributing no genetic material to the fertilization process. The Circuit Court s oral ruling is sparse, but outlines two primary reasons why the name of the gestational carrier should not be removed from the children s birth certificate. It first notes that no Maryland case law exists that w ould give a trial court the po wer to remove the mother s name from a birth certificate. Second, it notes that removing the name 3 On August 29, 2001, the same Circuit Court for Montgomery County denied the appellant s Petition for Determination of Parentage and Issuance of Accurate Certificates of Birth. In that petition, the appellant asked the surrogate carrier s name be removed from the birth certificate. The denial, which is appealed in this case, occurred on July 9, 2002, and reaffirme d the earlier A ugust 200 1 denial. 5 of the surrogate from the birth certificate is inconsistent with the best interests of the child standa rd ( BI C ), citin g, gene rally, hea lth reaso ns. 4 1. The appellant s p rimary conten tion is that the parentage statutes in Maryland, as enforced by the trial court below, do not afford equal protection of the law to men and women similarly situated. Maryland s Equal Rights Amendment (E.R.A.), Article 46 of the Maryland Declaration of Rights, specifies that [e]qu ality of rights und er the law sh all not be abridged or denied because of sex. The appellant contends that because Maryland s 4 We note that the Circuit Court also stated that [t]his is not an appropriate issue for adop tion, witho ut providing any reasons f or why not. S ection 4-21 1 of the H ealth General Article provides that a new birth certificate can issue where [a] court of competent jurisdiction has en tered an order as to the paren tage, legitimation, or adoption of the indiv idual. (Em phasis add ed). There is no reason why a trial cou rt, in appropria te adoption proceedings, could not order the issuance of a new birth certificate without namin g a m other. The Circuit Court also noted that there are health reasons why the gestational carrier s name should rem ain on the birth certificate, even if her pa rental rights are relin quis hed. Thi s makes little s ense . The fath er in this c ase c ould , and pres uma bly, does, have all the pertinen t health recor ds related to th e child s birth. T his is especially the case where n either the gestational carrier nor the egg d onor is unknow n to the father, as in this case. If necessary, the father could easily provide these documents to the hospital, to the child, or to third parties. The court also reasoned, [t]here is an abundant precedent for using the genetics test for identifying a natural parent, relying on Belsito v. Clark, 644 N.E.2d 760, 766 (Ohio 1994) . Belsito dealt with d etermining whose n ame belo nged on the birth certific ate when two candidates existed, the gestational carrier an d the egg dono r. The court resolved the dispute by employing a newly formed intent test to determine who the mother should be . 644 N.E .2d at 767. B ecause w e do not atte mpt to rede fine wha t a moth er is in th is case, Belsito has little applica bility. In any event, w e reject its rationale for determining who a mother is, that intent is the dispositive factor in the parentage determination. 6 parentage statutes allow a man to deny paternity, and do not, currently, allow a wom an to deny maternity, these sta tutes, unless inte rpreted diff erently, are subject to an E.R.A. challenge. The paternity statute in Maryland, codified as Maryland Code (1999, 2006 Repl. V ol.) §§ 5-1001 et. seq. of the Family Law Article, outlines the steps and processes through which the state can establish paternity, and thus hold alleged fathers responsible for parental duties, such as ch ild su pport. It is also the statut e tha t allo ws a llege d fat hers to de ny paternity. Section 5-10025 outlines the le gislative purpose o f the statute, pro viding that this 5 Section 5-1002 provides: § 5-1002. Legislative findings; purpose In general (a) The G eneral As sembly finds that: (1) this State has a duty to improve the deprived social and economic status of children born out of wedlock; and (2) the polic ies and pro cedures in th is subtitle are soc ially necessary and desirable. Purpose (b) The purpose of this subtitle is: (1) to promote the general welfare and best interests of children bo rn out of w edlock by sec uring for th em, as nea rly as practicable, the same rights to support, care, and education as children born in wedlock; (2) to impose on the mothers and fathers of children born out of wedlock the basic obligations and responsibilities of parenthood; and (3) to sim plify t he proce dure s for dete rmin ing p atern ity, custody, guardianship, and responsibility for the support of children born out of wedlock. Scope o f subtitle (c) Nothing in this subtitle may be construed to limit the right of a putative father to file a complaint to establish his paternity of a child. 7 State has a duty to improve the deprived social and economic status of children born out of wedlo ck, and that its goals are to promo te the gener al welfare and best inte rests of children born out of wedlock by securing for them, as ne arly as practicab le, the same rig hts to suppo rt, care, and education as children born in w edlock, and to imp ose on the mothe rs and fathers of child ren bor n out of wedlo ck the b asic ob ligation s and re sponsi bilities of parenth ood. To establish pate rnity, a proceeding mu st be broug ht before a child s eighte enth birth day, 6 and shall be filed either by the mother or by a third party if the mother is deceased or otherwise unable or u nwilling to f ile such a co mplaint. 7 A blood test may be requested in 6 Maryland C ode (199 9, 2006 R epl. Vol.) § 5 -1006 of the Family La w Article provides, as relevant: (a) A proceeding to establish paternity of a child under this subtitle may be begun at any time before the child 's eightee nth birth day. 7 Maryland C ode (199 9, 2006 R epl. Vol.) § 5 -1010 of the Family La w Article provides, as relevant: (d) (1) Except as otherwise provided in this subsection, a complaint filed under this subtitle shall be supported by the oath of the mother or pregnant woman, whether or not she is a party to the paternity proceeding. (2) The complaint may be filed without the oath if the mother or pregnant woman: (i) is dead; (ii) refuses to file a comp laint; (iii) refuses to disclose the identity of the father of the child; (iv) is mentally or physically incapable of making an oath; or (v) refuses to make the oath. (3) If the co mplaint is filed without an oath unde r paragrap h (2) of this subsection: (i) the complainant shall verify the fact of the pregnancy or birth; and 8 conjunction with the proceeding,8 and, at trial, the burden is on the complainant to prove that the allege d fathe r is the fa ther of t he child . 9 If, however, the trial court finds that the alleged father is the father, then it shall dec lare p atern ity. 10 Section 5-1 028 of th e Family Law Article details th at an unm arried fathe r and mo ther shall be provided an oppo rtunity to execute an affidavit of parentage as provid ed for un der HG 4-208. If th e trial court, however, finds that the alleged father is not the father, it can set aside or modify the (ii) if the mother or pregnant woman is living, she shall be made a defenda nt. 8 Maryland C ode (199 9, 2006 R epl. Vol.) § 5 -1021 of the Family La w Article provides: § 5-1021. Blood or genetic test State's Attorney's request (a) In co nnection with a pre trial i nquiry under this subtitle, th e Sta te's Attorney ma y request any indiv idual summ oned to the pretrial inquiry to submit to a b lood or ge netic test. Court order (b) If the individual refuses the State's Attorney's request to submit to a blood or genetic test, the State's Attorney may apply to the circuit court for an order tha t directs the ind ividual to sub mit to the test. 9 Maryland C ode (199 9, 2006 R epl. Vol.) § 5 -1027 of the Family La w Article provides, as relevant: At the trial, the burden is on the complainant to establish by a preponderance of the evid ence th at the alle ged fa ther is the father o f the ch ild. 10 Maryland C ode (199 9, 2006 R epl. Vol.) § 5 -1032 of the Family La w Article provides, as relevant: If the court finds that the alleged father is the father, the court shall pass an order that . . . dec lares the alleged father to be the f ather of the child . . . 9 declaration of patern ity. 11 Thus, the court has the power to declare that an alleged father has no paternal status when no genetic connection is found. The appellant argues that a woman has no equal opportunity to deny maternity based on genetic con nection - in essence, tha t in a paternity action , if no gene tic link between a man and a child is established, the man would not be found to be the pare nt, and the m atter would end, but a woman, or a gestational carrier, as in this case, will be forced by the State to be the legal mother of the children, despite her lack of genetic connection. The appellant offers that, under his interpretation of the parentage statutes, the E.R.A. problem is avoided, because a non-gen etic gestational ca rrier could ap ply to the court for a parentage order and receive one upon a showing that she was not genetically related to the child and never intended to be its parent. Maryland law cu rrently acc omm odates , if not contemplates, a birth certificate on which the mother is not identified. Thus, the trial courts may pass such an order. Maryland Code (1982, 2005 Repl. Vol., 2006 Supp.) § 4-211 of the Health-G eneral Artic le details the 11 Maryland C ode (199 9, 2006 R epl. Vol.) § 5 -1038 of the Family La w Article provides, as relevant: 5-1038. Finality of orders; modification Declaration of paternity final; modification (a) *** (2)(i) A declaration of paternity may be modified or set aside: *** 2. if a blood or genetic test . . . establishes the exclusion of the indiv idual na med a s the fat her in th e order . 10 process through which the Authorization of new certificates of birth may be obtained . It provides, as relevant: (a) Except as provided in subsectio n (c) of this se ction, the Sec retary shall make a new certificate of birth for an individual if the Department receives satisfactory proo f that: (1) The individual was born in this State; and (2) Regardless of the location, one of the following has occurred: (i) The previously unwed parents of the individual have married ea ch other af ter the birth of the individu al; (ii) A court of competent jurisdiction ha s entered an order as to the parentage, legitimation, or adoption of the individual; or (iii) If a father is not named on an earlier certificate of birth: 1. The father of the individual has acknowledged himself by affidavit to be the father; and 2. The mother of the individual has consented by affida vit to the ackno wledg ment. (Empha sis added). The appellant contends that, because the statute controlling new birth certificates only addresses parentage, without limitation to as to which, in the abstract, it does not preclude th e courts fro m issuing a n order au thorizing a b irth certificate that does not list the mother s name.12 We agree; the only matter remaining is construing the parentage statutes in a way that affords women the same opportunity to deny parentage as men have. The paternity statute was added to the Family Law Article i n 1984 . See Acts of 1984, chapter 296, § 2. Ju dging fro m langua ge the Le gislature used in drafting the statute, the Legislature did not contemplate anything outside of traditional childbirth. For ex ample , § 12 We note that § 4-211 (a) (2) (iii) allows for a new birth certificate to be issued when a man is later de termine d, as a re sult of a paternity action, to be the f ather of a child. Under the provisions set forth in this case, a later-determined mother s name could also be added to the certificate. 11 5-1027 of the Family Law Article provides, [t]here is a rebuttable presumption that the child is the legitimate child of the man to whom its mother was married at the time of conce ption, and the legislative purpose of the statute purpo rts to be to aid ch ildren b orn ou t of we dlock. The statute does not provide for a situation where the potential parents are unmarried, much less a situa tion whe re ch ildre n are conceiv ed using an as siste d rep rodu ctive tech nolo gy. What had not b een f atho med exists tod ay. The methods by which people can produce children have changed; the option of having children is now available, using these methods, to people who, otherwise, would not be able to have children. Whether the reasons for not producing a child in the traditional sense are biologic al or not, ado ption is no longer the only option. One can certainly imagine a married couple that is infertile, but wishes to have children of their ow n gene tic mak eup. Assisted re productive technolog ies allow fo r that to occur. The pate rnity s tatute, clearly, did not contemplate the many potential legal issues arising from these new techno logies, issues that will continue to arise unless the laws are rewritten or construed in light of these new technologies. As it exists, the pate rnity statute serves to restrict, rather tha n protect, the re lationships the intended p arents wish to ha ve with children conceived using these new processes. Again, the paternity statute, as written, provides an opportun ity for genetically unlinked males to avoid parentage, while genetically unlinked females do not have the same 12 option. This Court has found that any action by the State, without a substantial basis,13 that imposes a burden on, or grants a benefit to one sex, and not to the other, violates the Maryland Equa l Rights Ame ndme nt. Giffin v. Crane, 351 Md. 133, 149, 716 A.2d 1029, 1037 (1998). Th ere, where the parents o f two girls se parated, the tw o girls remain ed with the father, with the mothe r maintainin g regular vis itation until mo ving to another state a year later. 351 Md. at 135, 716 A.2d at 1030. In the divorce proceedings, both parties asked for cust ody, support, and attorney s fees. 351 Md. at 135, 716 A.2d at 1030. Custody and visitation were resolved by written agreement that detailed that there would be joint legal custody of the children, but that physical custody would remain with the father. 351 Md. at 135-136, 716 A.2d at 1030-1031. The agreement also contemplated the possibility of annual reviews of the residential status of the children, to be con ducted, at the requesting party s expense, by a mental health professional selected by the parties. 351 Md. at 136, 716 A.2d at 1031. After one such investigation, the mental health professional recommended that custody be chang ed from th e father to the mother, citing an emotional need of girls. 351 Md. 13 This Court has applied a strict scrutiny standard when reviewing gender-based discrim ination c laims. See, e.g., Giffin v. Crane, 351 Md. 133, 150, 716 A.2d 1029, 1037 (1998) (holding that the Equal Rights Amendment flatly prohibits gender-based classifications , absent sub stantial justification ); State v. Burning Tree Club, Inc, 315 Md. 254, 294, 554 A.2d 366, 386 (1989) (holding that the burden of justifying gender classifications falls upon the State, and that the level of scrutiny to which the classifications are subject is at least the sam e scrutiny as racia l classifications ); Rand v. Rand, 280 M d. 508, 512 -514, 374 A.2d 90 0, 903-90 4 (1977) (f inding instru ctive, in interpreting the breath of Maryland s Equal Rights Amendment as it applied to sex discriminatio n, the Supr eme Co urt of Wa shington s overriding compellin g state interest standard, and the Illinois Suprem e Court s strict judicial scrutiny standard). 13 at 137, 716 A.2d at 1031. By the time the review had been completed, all other issues, including child support, had been settled. 351 Md. at 138, 716 A.2d at 1032. After the father refused to accept the health profe ssional s reco mmend ation, the mo ther filed a pe tition to modif y custody a nd for child su pport. 3 51 M d. at 138 , 716 A .2d at 10 32. The trial cou rt granted the change in custody, com menting th at: [T]he Court gleans ... a girl child having particular need for her mother has seemed to come to the fore a nd is a nece ssary factor in m y determination s in this case. The Court feels that the best interests of the children and the material change of circumstances, as exemplified by the reaching an age where [the child] at the very least exemplifies a need for a female hand, causes the Court to come to the conclusion that the children should reside with their mother. 351 Md. at 140-141, 716 A.2d at 1033. In his appeal to the Court o f Special A ppeals, the f ather argue d that the trial court erred by considering the sex of the parents as a factor in its custody determination. 351 Md. at 141, 716 A.2d at 1033. The Court of Special Appeals, in an unreported opinion, held that [t]he consideration of gender was a va lid consideration in determining residential custody in this case. 351 Md. at 141, 716 A.2d at 1034. This Court, having decided the ultimate question to be whether, in a child custody proceeding, the sex of the parent is a legitimate and proper consideration in determining which of them is the appropriate residential custodian, held: The basic principle of the Maryland Equal Rights A mendm ent, thus, is that sex is not a permissible factor in determining the legal rights of women, or men, so that the treatment of any person by the law may not be based upon the 14 circumstance that suc h perso n is of o ne sex o r the oth er . . . that amendment generally invalidates governmental action which imposes a burden on, or grants a benefit to, one sex but not the other one. **** [T]he equality between the sex es deman ded by the M aryland Equ al Rights Amendment focuses on rights of individuals under the law, which encompasses all forms of privileges, immunities, benefits and responsibilities of citizens . . . . As to these, the Maryland E.R.A. absolutely forbids the determination of such rights, as may be accorded by law, solely on the ba sis of one's sex, i.e., sex is an imperm issible factor in making any such determination. . . . the Equal Rights Amendment's guarantee of equality of rights under the law can only mean that sex is not a facto r. 351 Md. at 148-149, 716 A.2d at 1037 (citations omitted). Vacating the judgment of the intermediate appellate co urt, this Court concluded that the Equal Rights Amendment prohibits genderbased classifications, absent substantial justification, whether contained in legislative enactments, governmental policies, or by application of common law rules. 351 Md. a t 149, 71 6 A.2d at 1037 . Other Marylan d cases reflect th e applic ation of the Am endm ent s inte nt. See Burning Tree Club v. Bainum, 305 Md. 53, 501 A.2d 817 (198 5) (holding that the E.R .A. drastically altered traditional views of the validity of sex-based classifications imposed under the law, and wa s cogent ev idence that th e people o f Maryland were fu lly committed to equal rights for men and wome n); Rand v. Rand, 280 Md. 508, 374 A.2d 900 (1977) (holding that the common law rule placing primary liability for the support of minor children on the father was irreconcilable with the E.R.A., and noting that the paren tal oblig ation fo r child su pport ... is one share d by both par ents ); Kline v. Ansell, 287 Md. 585, 414 A.2d 929 (1980) (holding 15 that a comm on law ru le that only men could sue or be sued for criminal conversation violated the E.R.A.); Condore v. Prince George s Co., 289 Md. 516, 425 A.2d 1011 (1981) (holding that the common law doctrine of necessaries, which obligated the husband, but not the wife, to pay for his spou se s necess aries, violated th e E.R.A .); Turner v . State, 299 Md. 565, 474 A.2d 1297 (1984) (holding that a criminal statute which prohibited the employment by taverns of females, but not males, violated the E.R.A .); Elza v. Elza, 300 Md. 51, 475 A.2d 1180 (1984) (abolishing the maternal preferenc e doctrine, h olding that neither pare nt shall be given preference solely because o f his or her sex ). These ru lings reflect this Court s understanding that both mothers and fathers will be provided equal treatment under the law, and that neither will be shown preference simply because of his or her sex or familial role. Because Maryland s E.R.A. forbids the granting of more rights to one sex than to the other, in order to avoid an equal rights challenge, the paternity statutes in Maryland must be construed to apply equally to both males and females. 14 This Court has long held that a 14 The app ellant offers additional arg uments tha t we need not addres s to resolve th is case. He first argues that it is important to define the term parent, correctly. The appellant focuses, in turn, on how the courts should define the word mother in light of developing technologies, noting: [I]n this case, the gestational carrier who actually gave birth to the children is not genetically related to the children in any way, but might be considered the birthmother. And the person who is, in fact, genetically related to the children, and might be c onsidered the moth er of the children unde r a genetic def inition of the te rm, is not listed a nywhere. S o, who a ctually belongs on the birth certificate as mother depends entirely on the definition accord ed to the term. The app ellant next ass erts that unde r Maryland law, the birth certificate estab lishes legal, not scientific facts, regarding an individual s birth. He reasons: 16 statute will be con strued to avoid a conflict with the Constitution whene ver that cou rse is possible. Dee ms v . We stern Maryland Ry. Co., 247 Md. 95, 102, 231 A.2d 514, 518 (1967 ). See also R.A. Ponte Architects, Ltd. v. Investors' Alert, Inc., 382 Md. 689, 718, 857 A.2d 1, 18 (2004) (stating that a court will, whenever reas ona bly poss ible, construe and apply a statute to avoid casting serious dou bt upon its co nstitutionality); Harryman v. State, 359 Md. 492, 509, 754 A.2d 1018, 1027 (2000) (holding that an interpretation of a statute which raises doubts as to its constitutionality should be avoided if the language of the statute permits); Curran v. Price, 334 M d. 149, 172 , 638 A.2d 93, 104 (1 994) (hold ing that if a statu te is susceptible to two reasonable interpretations , one of w hich wo uld involve a decision a s to its constitutionality, the preferred construction is the one which avoids the constitutional question); Davis v. S tate, 294 M d. 370, 377 , 451 A.2d 107, 111 (1982) (ho lding that a construction of a statute giving rise to doubts as to its constitution ality should be a voided if the language permits); District Land Corp. v. Washington Suburban Sa nitary Comm n, 266 Md. 301, 312, 292 A.2d 695, 701 (1972) (holding that when two constructions of statutory The chief function of the birth certificate is to record the circumstances of an individu al s birth. . . . The se condary fun ction of the birth certificate is to establish the legal circumstances of an individual s birth. Under the statute, the names of natural (genetic) parents may[ be] removed [and] the names of the adoptive parents inserted in their place. As such, the document tells the state and public institutions to whom they may look for the support of the child, for permission in the case of a minor, for inquiry in matters conce rning th e child. The reso lution of this c ase does n ot require tha t we re-def ine the term, mother, n or is there any dispute as to the purpose of the birth certificate. 17 language are possible, courts will avoid the construction that makes the provision illegal and nugatory); Barrett v. Clark, 189 Md. 116, 127, 54 A.2d 128, 133 (1947) (holding that where a statute, susceptible to two possible constructions, has doub tful constitution ality, courts will adopt th at view of the e nactm ent that a voids f undam ental ob jections ). The language of the pa ternity statute need not be rew ritten. Interpreting the statute to extend the same rights to women and maternity as it applies - and works q uite well - to men and paternity is all that is required.15 15 Judge Cathell s dissent correctly notes that this case illustrates how new reproductive technologies have produced situations virtually inconceivable decades ago. In Re R oberto, __ M d. __, __ , __ A.2 d __, __ [slip op . at 1] (20 07) (C athell, J., dissenting). He feels, however, that the majority s decision to address one of these situations opens the floodgate to a number of moral problems, ones best left to the Legisla tive Bra nch to a ddress . __ M d. at __, _ _ A.2d at __ [s lip op. at 1 ] (Cath ell, J., dissenting). Needless to say, we do not agree. Primar ily, his disse nt seem s conce rned th at this op inion cr eates an intent test. The dissent feels that, because the gestational carrier in this case has requested to have her name remo ved from the birth certificate w ithout challenging, in the same manner a man mig ht in a patern ity suit, that the gene tic material use d to create the child is actually hers, this opin ion allows a wom an to challen ge matern ity because she did not inte nd to be a mother. __ Md. at __, __ A.2d at __ [slip op. at 4] (Cathell, J., dissenting). Thus, Judge Cathell worries that thousands of men now will want to challenge paternity because they did not intend to become fathers. This opinion does nothing of the sort. The paternity statute, as applied to men, and now, as to women, merely establishes that the process by which men can challenge paternity can now be employed by women. As written, the paternity statute does not explicitly include intent as a factor to be considered. As noted previously, we reject the Circuit Court s reliance on Belsito, supra, 644 N.E.2d 760, which resolved a similar situation by looking at who, as between the egg donor and the gestational carrier, was intend ed to b e the m other. See note 4, supra at 6. This opinion does not create an intent test for women. This opin ion does n ot attempt to p redict the futu re of repro ductive tech nologies, it does not a ttempt to w rite policy on the to pic of surro gacy, and it doe s not define what a 18 Furthermore, for reasons discussed in part C. infra, because there is sufficient evidence that the State would not object to the removal of the gestational carrier s name from the birth certificate, and because such a result would not be inconsistent with the current statutes controlling th e issuance o f birth certifica tes, we hold that it is within a trial court s power to order the MDVR to issue a birth certificate that contains only the father s name. 2. The Circuit Co urt opined th at it is not in the be st interests of th e minor ch ild [to remove the surroga te mother s n ame from the birth certific ate]. The o nly explanation it provides, however, is as follows: There are a lot of public policy reasons why it is not in the best interests of the child not to have the mother s name on the birth certificate. There are health rea sons wh y you might w ant to have , and it would be good to have the mother s name on the birth certificate, and have that inform ation av ailable. It is clear, however, that, the trial court s explanation aside, the best interests of the child ( BIC ) standard does not apply to the unusu al circumstance in the case sub judice. While we hav e noted pre viously that the controlling factor in adoption and custody cases is ... what best serves the interest of the child, In re Adoption/Guardianship No. 10941, 335 Md. 99, 113, 642 A.2d 201, 208 (1994), it is clear that the context in which the issue arises is significant in determining the standard by which to evaluate the situation. mother is. 19 In family law cases, courts will emp loy the BIC standard in their analysis when there is a dispute concerning custody of the child by opposing parents or third parties. This Co urt, for e xam ple, h as sta ted p reviousl y: A court faced with a question of child custody upon the separation of the parents may continue the joint custody that has existed in the past, or award custody to one of the parents, or to a third person , dependin g upon w hat is in the best interest of the child. Taylor v. Taylor, 306 Md. 290, 301, 508 A.2d 964, 969 (1986) (emphasis added). The use of the BIC standard is highly dependent on the circumstances surrounding the case; that is, the BIC standard is not always applied uniformly or in the same way, even when the case involves parenta l rights o f some sort. For example, in cases involving the surname of a child and a dispute by the parents over that name, two different standards are applied under two similar, yet separate, circumstances. Compare Schroeder v. Broadfoot, 142 Md. App. 569, 790 A.2d 773 (2002) with Dorsey v. Tarpley, 381 M d. 109, 8 47 A.2 d 445 ( 2004) . As Schroeder demonstrates, where th e child has no initial surna me, the co urts will apply a pure best interests stand ard. Th ere, the Court o f Special A ppeals, app lying this standard, held that a child s best interests were not necess arily served by auto matically assuming the father s surname. The case involved two unmarried parents who disagreed as to whose surname the unborn child should assume upon birth. 142 Md. App. at 572, 790 A.2d at 775. After birth, the mother did not report that Broadfoot was the father, so his name was not listed on the child s birth certificate. 142 Md. App. at 572, 790 A.2d at 775. Upon discovering that the mother s surname had been listed on the birth certificate, the father filed 20 a Complaint agai nst th e mo ther; the m othe r, in tu rn, filed a Com plain t to E stablish P atern ity, Cus tody, and Child Support against the father. 142 Md. App. at 571, 790 A.2d at 775. Prior to the paternity action, the father had not acknowledged paternity of the child, but had admitted to that possibility. 142 Md. App. at 571, 790 A.2d at 775. After blood testing revealed a paternal genetic connection, the father took action to have the child s surname changed from th e moth er s last n ame, S chroed er, to his own, Broadfoot. 142 Md. App. at 571, 790 A.2d a t 775. The father argued, primarily, that the child will become confused over whether his mother's ex-husband (Brent Schroeder) is his father. 142 Md. App. at 574, 790 A.2d at 776. The Circuit Court agreed. 142 Md. App. at 575, 790 A.2d at 777. After noting that the proper standard, as established in Lassiter-Geers v. Reichenbach, 303 Md. 88, 90, 492 A.2d 303, 304 (1985), was that whe n a father a nd moth er of a child fail to agree at birth and continue to disagree up on the surn ame to be given the child, the question is one to be determined upon the basis of the best interest of the child, the Court of Special Appea ls held that judicial resolution of the name dispute by application of th e customary preference for children to bear their father s surnames would violate the Maryland Equal Rights Amendment. 142 Md. App. a t 581, 79 0 A.2d at 781, citing Lassiter-Geers, 303 Md. at 94, 492 A .2d at 306. It n oted, in that reg ard: A legal presumption that would operate to create a def ault circums tance in whi ch, a bsen t evid ence of ab andonm ent o r seri ous m isconduct by th e chi ld's father, the child's best in terests are dee med to be served by giv ing him his fath er's surname , is a gender-b ased and gender-b iased prefe rence that n ot only is outdated in the law bu t also wou ld violate the M aryland Equ al Rights Ame ndme nt. 21 142 Md. App. at 585-586, 790 A.2d at 783. Proceeding on those premises, the intermed iate appellate court decided that, under the circumstances, a gender neutral, fam ilial role neutral, pu rely best interest standard would be the most reasonable: We conclude that in resolving no initial surname disputes between unmarried parents, just as in resolving those disputes between parents who are or were married, either at conception or at the time of birth, a pure best interests standard applies. Because the matter is one of equity, however, the doctrine of laches applies. Thus, if a father delays in seeking a determination of paternity, or in asserting his objection to the name the mother has selected for the child, the cou rt ma y conclude that the father has acquiesced in the mother's naming of the child, and treat his challenge as a r equest for the chi ld's name to be changed, to whic h the ex treme c ircums tances standa rd appl ies. 142 Md. App. at 587-588, 790 A.2d at 784-785. The result in Schroeder is different from that which this Court reac hed in Dorsey. In that case, there was no paternity dispute; rather, the dispute arose over whether a prior agreement had been reached a s to the child s surname. 381 Md. at 112-113, 847 A.2d at 447. This Court addressed the differing standards in change of name cases and no initial name cases such as Schroeder. In Dorsey, the child was born to un married parents. The f ather, Tarpley, wanted the child s surname to be changed from the mothe r s surname , Dorsey, to Dor sey-T arpley. The m other o ppose d the ch ange. 3 81 M d. at 111 , 847 A.2d at 446. The trial court grante d the fathe r s petition for n ame cha nge, conc luding that it w ould best serve the interests of the child to allow the n ame change. 38 1 Md. at 114, 84 7 A.2d 447-4 48. It based its decision on the child s general interest to have the names of both parents. The 22 court noted, in that regard, that the child s young age was a factor, con cluding tha t here in a circumstance wh ere there is at least a separation, the child should at least carry the tradition of both families. 381 Md. at 114-115, 847 A.2d at 448. The mother, whose motions for new trial and to alter or amend the judgment had been denied, appealed. 381 Md. at 112, 847 A.2d at 446. She contended that the surname had been agreed to prior to the birth, and that the father had failed to show that the change was in the best interest of the child and that the circumstances were extreme enough to warran t a change. 381 Md. at 112, 847 A.2d at 446. This Court vacated the judgm ent. 381 M d. at 115, 84 7 A.2d a t 448. We noted that, in general, parents may chose jointly whatever name they wish for the child s surname, just as they determine what shall be a child s given name, but, citing Lassiter-Geers v. Reichenbach, 303 Md. 88, 94-95, 492 A.2d 303, 306 (1985), neither parent has a superior right to determine the initial surname their child should bear. 381 Md. 115, 847 A.2d at 448. Furthermore, we reiterated that, in cases w here the child ha s no in itial nam e at birth , courts must look at what is in the best interests of the child before determining if a name change is warranted. 381 Md. at 115-116, 847 A.2d at 448-449, quoting West v. Wright, 263 Md. 297, 299, 283 A.2d 401, 402 (1971). We noted, howev er, that there is a presumption against granting such a change except under extreme circumstances, 263 Md. at 300, 283 A.2d at 403.16 As to that, w e said, the proponent of the name change has the 16 There were two factors to consider when determining the existence of such circumstances, namely: whether there is any evidence of misconduct by a parent that could make a child s continued use of a parent s name disgraceful, and whether the parent 23 burden of satisfying the extreme circumstances standard, e.g., bad parental behavior. 381 Md. at 116-117, 847 A.2d at 449, citing Schroeder, 142 Md. App. at 584, 790 A.2d at 782 (noting that abandonment and serious misconduct disgracing an existing surname are of paramount importance because they epitomiz e the sort of e xceeding ly negative behavior by a parent that will justify changing the child s surname, when the parents gave the child that parent s surname at birth ). In contrast, for no initial name cases, where parents have not agreed on a child s surname, the proponent for the nam e change must dem onstrate that it is in the child s best interest under a Lassiter-Geers pure best interests standard. 381 Md. at 117, 84 7 A.2d at 449. As Schroeder and Dorsey illustrate, in parental disp utes, the use o f the best inte rests of the child stan dard is dep endent on the circum stances. W here the disp ute is between a parent and a non-pa rent, howe ver, while th e best intere sts of the child standard is a factor in the judicial resolution, it is typically not addressed until the parent is found unfit. In McD ermott v. D ougherty, 385 M d. 320, 869 A.2d 75 1 (2005), w e held that: ...in disputed custody cases where p rivate third pa rties are attemp ting to gain custody of children from their natural parents, the trial court must first find that both natural parents are unfit to have custody of their children or that extraordinary circumstances exist which are significantly detrimental to the child remaining in the custod y of the parent or parents, before a trial court should consider the best interests of the child standard as a means of deciding the disp ute. 385 Md. at 325, 869 A.2d at 754. wilfully aban doned o r surrendere d his or her n atural ties to the p arent. 24 McD ermott was a cu stody dispute between the child s natural father, McDermott, and his maternal grandparents, the Dougherty s. 385 Md. at 323-324, 869 A.2d at 753. After the Circuit Court for Harford County found Patrick s mother to be unfit, it proceeded to find that McDermott s employment as a merchant marine, which required him to spend long intervals at sea, constituted an exceptional circumstance as defined in Ross v. Hoffman, 280 Md. 172, 191, 372 A.2d 582, 693 (1977). Mindful of, and applying the best interests of the child standard, the court concluded that the child Patrick required a more stable living situation. 385 Md. at 324, 869 A.2d at 753. The Circuit Court therefore awarded custody of Patrick to the Dougherty s. 385 Md. at 324, 869 A.2d at 753. In analyzing this ca se, we first n oted that, in a situation where both parents seek custody, each parent possesses a constitutionally-protected fundamental parental right. 385 Md. at 353, 869 A.2d at 770. Under Maryland Code (1984, 2006 Repl. Vol.) § 5-203(d)(2) of the Family Law Article,17 we observed, neither parent has a superior right to exercise the right to provide care, custody, and control of the children. 385 Md. at 353, 869 A.2d at 770. Because each parent neutralizes the other s right, the best interests of the child [remains] as the sole standard to apply to these types of custody decisions. 385 Md. at 353, 869 A.2d at 770. Where, however, we explained, 17 § 5-203(d )(2) provide s that the pa rents are the jo int natural gu ardians of their minor child, that they are jointly and severally responsible for the child's support, care, nurture, w elfare, and e ducation, a nd that they eac h have th e same po wers and duties in relation to the ch ild. 25 ...the dispute is between a fit parent and a private third party, ... both parties do not begin o n equal fo oting in respect to rights to care, c ustody, and co ntrol of the children. The parent is asse rting a fund amental co nstitutional righ t. The third party is not. A private third party has no fundamental constitutional right to raise the children of others. Generally, absent a constitutional statute, the non-governmental third party has no rights, constitutio nal or otherwise, to raise someo ne else s child. 385 Md. at 35 3, 869 A.2d at 77 0 (emphasis adde d). Acc ordingly, this Court als o noted tha t typically, the best interests of the child standard is applied to disputes between natural fit parents, most often aris[ing] in marriage dissolution issues between ... two constitutionally equally qualified parents, 385 Md. at 354, 869 A.2d at 771, and not between parents and non-pare nts. Once th e State inserts itse lf into the parenting situation, by reason of the unfitness of the parents or as a result of other circumstances, the best interest of the child standard is applied. 385 Md. at 355, 869 A.2d at 771. Thus, in McD ermott, a typical third-party custody dispute, where persons other than the natural parents or the State are attempting to gain custody or visitation with respect to the children of natural pare nts, we no ted that: the best interest standard is inappropriate unless the finder of fact first finds that the natural parents are unfit, the natural parents by their conduct have waived or lost their constitutional protections, or there is a finding of extraord inary, exception al, or compelling circums tances that require the court to remove th e child from the natural parents in order to protect the child from harm. It is only if the parents are unfit, or if there is some exceptional circumstance exposing the child to harm, that the child may be removed from the custody of the parents. If a preliminary finding of parental unfitness or extraordinary circumstances is made, the court is then faced with what to do with the child. In o nly that context, then, after such preliminary finding s are 26 proved , may the c ustody of the child be base d on a b est intere st stand ard. 385 Md. at 357, 869 A.2d at 772 (emphasis added). Furthermore, the non-constitutional best interests of the child standard, absent extraordinary (i.e., exc eptio nal) circu msta nces , doe s not override a par ent's fundamental constitutiona l right to raise his or her child wh en the case is between a fit parent, to whom the fundamental parental right is inherent, and a third party who does not possess such constitutionally-protected parental rights. In cases between fit natural pare nts who both have the fundamental constitutional rights to paren t, the best interests of the child will be the ultimate, determinative factor. . . . In respect to third-party custody disputes, we shall adopt f or Marylan d, if we ha ve not alrea dy done so, th e majority position. In the balancing of court-c reated o r statutor ily-created standa rds, such as the best interest of the child test, with fundamental constitutional rights, in private custody actions involving private third-parties where the parents are f it, ab sent extraord inary (i.e., exceptional) circumstances, the constitutional right is the ultimate determinative factor; and only if the paren ts are unfit or extraord inary circumsta nces exist is the best interest of the child test to be considered, any contrar y comm ent in ... our cas es, notw ithstand ing. 385 Md. at 41 8-419, 869 A .2d at 808-809 (em phasis added). In the case sub judice, a third party desire s to relinquish parental rights, not assert them. There simply is no contest over parental rights. There is no issue of unfitness on the part of the father. Mo reover, there is nothing with which to measure the father s ability to be a parent ag ainst, in order f or a trial court to rule that it is not in the best interests of the child to grant the father the relief he seeks. Accordingly, the implication by the trial court that the BIC standard should be used in the case sub judice is inappropriate, and its use by the trial court was error. C. It requires noting that surrogacy contacts, that is, payment of money for a child, are 27 illegal in Ma ryland. T wo sta tutes, M aryland C ode (20 02, 2006 S upp.) § 3-603 of the Criminal Law Article, entitled Sale o f minor 18 (formerly entitled Child Selling, Maryland Code (1957, 19 92 Rep l. Vol.) Article 27, §35 C ) and M aryland Cod e (1999, 20 06 Rep l. Vol.) § 5-3B-32 of the Family Law Article, entitled Prohibited payments 19 (formerly entitled Prohibited Compensation, Maryland Code (1984, 1991 Repl. Vol.) §5-327(a ) of the Fam ily 18 Section 3-6 03 provid es as relevan t: § 3-603. Sale of minor Prohibited (a) A person may not s ell, barter , or trade , or offe r to sell, ba rter, or tra de, a minor for money, property, or anything else of value. Penalty (b) A person who violates this section is guilty of a misdemeanor and on conviction is subject to imprisonment not exceeding 5 years or a fine not excee ding $1 0,000 o r both f or each violatio n. 19 Section 5-3B-32 provides: § 5-3B -32. Prohib ited paymen ts Prohibited act (a) Except as otherwise provided by law, a person may not charge or receive, from or for a parent or prospective adoptive parent, any compensation for a service in connection with: (1) placement of an individual to live with a preadoptive family; or (2) an agreement for custody in contemplation of adoption. Construction of section (b) This section does not prohibit payment, by an interested person, of a reasonable and customary charge or fee for adoption counseling, hospital, legal, or medical services. Duty of State's Attorney (c) Each State's Attorney shall enforce this section. Penalties (d) A person who violates any provision of this section is guilty of a misdemeanor and on conviction is subject to a fine not exceeding $100 or imprisonment not exceeding 3 months or both, for each offen se. 28 Law Article) so provide. We have enforced these statues. See State v. Rankles, 326 Md. 384, 605 A.2 d 111 (19 92) (holdin g that Article 2 7, §35E w as not limited to pa yments connected with an adoption, but also included the relinquishment of custody of a child for money); In re Adoption No. 9979, 323 Md. 39, 591 A.2d 468 (1991) (holding that FL § 5327 barred payments m ade by the ad opting pare nts directly to the birth mother to cover the cost of matern ity clothing); Stambaugh v . Child Support Enforcement Admin., 323 Md. 106, 591 A.2d 501 (1991) (holding that an agreement between a divorced couple under which the ex-husband consented to the ado ption of the couple s ch ildren by the wife s new spo use in exchange for the waiver of child sup port that was in arrears was void as contrary to pub lic policy under both FL § 5-327 and A rticle 27, § 35E). Fina lly, we reiterate th at the Divisio n of Vital R ecords ha s expressed no objectio n to the removal of the gestational carrier s name from the birth certificate in response to an order of the Court. In a letter written to the Birth Section Chief of the Maryland Division of Vital Records outlining sev eral previou sly discussed p rovisions de aling with in stances of this nature, the S ection Ch ief signed, a nd in turn, ac quiesced to , the follow ing passag e: If a biological parent is unma rried, and is the only intended parent (u sually the father) ; and the surrog ate, her husband , and the bio logical fathe r were to execute an Affidavit of Parentage indicating that the biological father is the father, the surrogate s husband agrees and relinquishes all parental rights that he may have, if a ny, the registrar w ould report that information. The Division would issue a birth certific ate for the ch ild with the su rrogate as the mother and the biological father as the father. Or if the surrogate were unmarried and she and the biological father executed the Affidavit of Parentage, the registrar would report that information. The Div ision wou ld issue a birth certificate for the child with the surrogate as the m other and the biological fath er as the 29 father. Then if the biological parent and/or surrogate wanted all information regarding the mother removed from the birth certificate, the father could institute an action in Court to o btain an O rder specifying the inform ation to be removed. Such an order may be obtained, perhaps, through adoption or a proceeding to determine parentage. After receiving such a Court Order, the Division would issue a new birth certificate r emoving the inform ation in accordance with the Court s directions. Letter from James A. S hrybman, A ttorney, Law Offices o f James A . Shrybman , P.C., to Kathryn A. Morris, Birth Section Chief, Maryland Department of Mental Hygiene, Division of Vital Records (A pril 21, 2001) (on file with au thor) (emphasis added ). JUDGMENT OF THE CIRCUIT COURT FOR MONTGOMERY COUNTY REVERSED . CASE REMANDED TO THAT COURT FOR PROCEEDINGS CONSISTENT WITH THIS OPINION. COSTS TO BE PAID BY THE STATE. 30 Circuit Co urt for Mo ntgomery C ounty IN THE COURT OF APPEALS OF MARYLAND No. 110 September Term, 2002 In re Roberto d. B. Bell, C. J. *Eldridge Raker *Wilner Cathell Harrell Battaglia, JJ. Dissenting Opinion by Cathell, J. Filed: May 16, 2007 *Eldridge, J. and Wilner, J., now retired, participated in the hearing and conference of this case while active membe rs of this Co urt; after being recalled pursuant to the Constitution, Article IV, Section 3A, they also participated in the decision and adoption of this opinion. I dissent. This case illustrates that the process of manufacturing children can lead to unusual situations that would have been virtually inconceivable decades ago when the relevant statutory scheme was enacted. I do not necessarily agree or disagree that the remedy for the present situation crea ted by the ma jority is approp riate or o therwi se. I think it is wrong for the majority to fashion, in the first instance, the public policy it is creating as a r eme dy. The issues present in this case, going as they do to the very heart of a society, are, in my view, a matter for the Legislative Branch of government and not initially for the courts. It is important to note wh at this case is not. It is not about a woman, married or otherwise, wanting to be a mother, who has difficulty in conceiving through sexual intercourse or who does not want to conceive through sexual intercourse or direct artificial insemination, and thus wants to have her egg fertilized outside her body and then implanted back into her womb where she will, hopefully, be able to give natural birth to a child she w ill raise as the mother. This case has nothin g to do w ith attempts to c ope with f emale fertility problems of any kind. In this case (so far as the rec ord reflects), th ere is no w oman, ge netic mother, birth mothe r, or otherw ise, who w ants to mother the resulting child or who wants her name on the b irth certif icate. This is simply the case, apparently, of a man who wants to be a father and, recognizing that he cou ld not do it by himself, went out and arranged for (perhaps hired) two different women and an assemb ler to help him manu facture a child - one woma n to donate (or sell) the egg (a genetic mother), a technician (apparently paid) to fertilize the egg in a dish,1 and another w oman (the birth mo ther) to carry the fetus through the gestation period and then to eject the child in what would normally be considered the birthing process. At the end of this man ufacturing process, the result is a child w ho, accord ing to the m ajority, is to have n o moth er at birth . The hospital, hav ing some familiarity with normal birth ing proces ses, understa ndably perceives what happens to be a birth and places the name of the woman from whence the child has come (at least the child emerged from the birth canal of the woman), on the birth certificate as required by State law. Everybody, (except the child and the hospital) then claims foul because the law requires the naming of a mother on a birth certificate. Then the majority of this Court joins the clamor and decrees that the child has no mother at birth a concept thought impossible for tens of thousands of years. One supposes that under the aegis of what is occurring in this case, that if a source of sperm do es not intend to be a father , he could assert that he w as not the father, 2 and under 1 The record is unclear as to the source of the sperm. 2 The majority holds that it is a violation of the Equal Rights Amendment for women not to be able to disclaim maternity altogether, even though one of them produces the egg and the other carries it through gestation and it emerges from her birth canal because a man has a right to challenge paternity. The majority fails to acknowledge that what a man challenges is that it is his sperm that fertilized the relevant egg. In the present case, there is no challenge to the fact that the particular woman produced the egg and that the other woman bore the child and birthed it. The equivalent really would be, if the father acknowledged that his sperm had fertilized the egg, but that at the time of intercourse he did not intend it to do so or to be a father and thus the Court should declare him not to be the father. If such a provision existed for a father but not a mother, the Equal Rights Amendment might be violated. But it does not now exist for either by statute, although with the majority s opinion it will now exist for the mother but not the father a situation that may well be a violation of the Equal Rights Amendment. That amendment (continued...) -2- the theories of th e majority, a child could come into the w orld with neither a moth er nor a father at birth.3 As noted, the appellant and the majority, assert that there is inequality in the treatment of the respectiv e genders , in that a man is permitted b y statute to deny pate rnity to deny that he is the father of the child because there is a procedure in which that denial can be litigated. He 4 argues that there is no similar method by which a wom an can deny ma ternity. Howeve r, that is not the issue in the present case. The relevant woman is not denying that she produced the egg that was fertilized. Neither appellant nor the woman that carried the child through the gestation pe riod deny that sh e bore and delivered th e child and that it came out of her birth canal. If appellant o r either of the wome n were as serting the sam e issue that ex ists in paternity litigation, the ma jority might hav e a point. W hat the ma jority fails to realize in its opinion, is that what a man is doing when he challeng es paternity is that h e denies his 2 (...continued) guarantees equal treatment to men as well as women. 3 With the majority s decision today that the mother from whom the child is delivered is not to be considered the mother (and apparently the donor of the egg is not to be considered the mother), the Court opens up the very real possibility that completely disinterested persons will (or could) commence the manufacture of children. For instance, an entrepreneur could contract with a sperm donor, contract with an egg donor, contract with an assembler, contract with a woman to carry the child through the gestation period, and a child could be manufactured with neither a mother nor a father. The child could then be put up for adoption at a price - and a new business, in the spirit of American ingenuity, is created. That is, of course, if it can be determined who, if anybody or any entity, would have custody of the child. This is, I realize, virtually incomprehensible to reasoned thought but, why will it not be something that can happen on the way down the slippery slope created by the majority? 4 The man that made the arrangements is the plaintiff in this case and, perhaps, the donor of the sperm. -3- particular involvemen t in fertilizing an egg and thus he asserts he is not the particular or correct father o f the ch ild a m an is no t assertin g that the child ha s no fa ther at all. In the present c ase, what th e majority does, is to establish as a matter of public policy that it is possible fo r there to be a d enia l of a ll ma ternity, i.e., that there is no mother at all at birth, not that a particular woman is not the mother. The majority, in essence, holds that if you do not intend to be the m other, you should not be respo nsible as a mother. The re are probably tens, if not hundreds of thousand s, of fathers ( and certain ly mothers as well) who did not intend to be parents at the time of the actions that led to conception, who have been judicially dete rmin ed to be re spon sible for the su pport of the c hild they did not intend to conceive. With the m ajority s d ecision today, if a genetic and/or birth mother does not intend to act as a mother during this manufacturing process they have no responsibility as a mother. Presuma bly, now bo th fathers an d mothers (participating in in vitro fertilization or sexual intercourse), if they enter into contracts or other writings or agreements, providing that neither intends to be a parent, or just engage in acts without any agreement, in which a child is conceived, the mother and the father (because he must be treated equ ally as well) can claim that no one should be responsible for the rear ing and suppo rt of the child(re n). Pres uma bly, under such circumstances the only responsibility for the rearing of children would be the State s. If ever there was a strained interpretation o f a statute, the m ajority s attempt to construe Marylan d Cod e (1982 , 2005) , § 4-211(a)(2)(ii), which allows the issuance of new -4- birth certificates when a court enters an order as to the parentage of a child, as contemplating the issuance of certificates of birth showing that a child had no mother at birth, is it. The majority recognizes this to be the case when saying: Th e pat ernity statu te, clearly, did not contem plate the ma ny potential lega l issues arising from these new technologies, issues that will continue to arise unless the laws are rewritten or c onstrued in light of these new technologies. Ante at ___. Ye t it sets about changing the reach of the statute because, What has not been fathomed, however, exists today. Ante at ___. Th en the ma jority creates new public policy permitting the manufacturing of children, saying: Again, the paternity statute, as written, provides an opportuni ty for genetically unlinked males to avoid parentage, while genetically unlinked females do not have the same option. This Court has found that any action by the State, without a substantial basis, that imposes a burden on, or grants a benefit to one sex , and not the other, violates the Marylan d Equal R ights Ame ndme nt. Ante at ___ (footnote om itted). I suggest, that the majority s decision today is not what was fathomed when the General Assembly enacted the relevant statu te and also w as not wh at the peop le of the Sta te thought they were approving when they approved the Equal Rights Amendment (the writer amongst them). It simply defies common sense and all principles of logic to hold that the people of the State and their representatives thought at the time they were enacting and approving the statute and the Cons titutional Am endmen t, that they were p ermitting the courts to create a procedure whereby children would end up not having any mothers, even at birth. Add ition ally, as noted ea rlier, when, in this case, the majority of the Court holds that -5- it is permissible for a child to be listed as having no birth mother (either the donor of the egg, who is actually the genetic mother, or the woman who carries the fetus through gestation and then births the child), partially on the implied basis that neither intended to be a mother, they are creating a violation of the Equal Rights Amendment in doing so. If a genetic mother and a birth mothe r can deny m aternity because neither intended to be mothers, men, who at the time of interc ourse in m any instances d o not intend to be fathe rs either, can c ertainly present an argument that they are bein g discriminated against. If gene tic and birth mothers can deny all matern ity, why cannot g enetic fathe rs and fath ers present a t birth deny all pate rnity. In so far as th e Constitutio n is concern ed, it would make no differenc e if the child results from accident or intent. One could even logically determine that a person who intends conception to occur (for whatever purpose), as opposed to one wh o hopes it w ould not, should have a t least som e, if not m ore, of a suppo rt burde n. I point to the possibilities discussed in this dissent, even though some may consider them to be remote, to highlight why the issues presented here should be left to the Legislative Branch to first address. That entity has the resources, via studies and commissions, better access to ethicists and social scientists, and the like, to fully explore the full range of questions surrounding this issue and similar issues that will inevitably occur in the future.5 5 Other countries recognize the need for ethical overview of new and emerging fertilization techniques. In England, in an article entitled The prospect of all-female conception, the author notes: Scientists are seeking ethical permission to produce synthetic sperm cells from a woman s bone marrow . . . . (continued...) -6- This C ourt sim ply lacks th e resou rces av ailable to the Ge neral A ssemb ly. In my view, if ever there was an instance for deference to the Legislative Branch of government to permit it an opportunity to set public policy it is this case. Instead, less than seven unelected (in contested elections) judges, are, in essence, stating that it is good public policy for the people of this State to permit the manufacturing of children who have no mothers even at the moment of birth. The majority today eliminates, in circumstances such as these, a mother from whom a child could depend upon fo r support. W hat is going to happen, if in fact men are afforded the same rights that the majority says in the present case are due to women? There would be no father upon whom the child could depend upon 5 (...continued) ... Creating sperm from women would mean they would only be able to produce daughters . . . . The latest research brings the prospect of female-only conception a step closer. We are in the process of applying for ethical approval. ... Whether the scientists will ever be able to develop the techniques to help real patients - male or female - will depend on future legislation that the Government is preparing as a replacement to the existing Human Fertilisation and Embryology Act. Steve Connor, The prospect of all-female conception, The Independent, April 13, 2007, http://news.independent.co.uk/world/science_technology/article2444462.ece (last visited April 13, 2007). With the developing science in the area of manufacturing children, and with the problems associated with expanding populations, I would respectfully suggest that courts are uniquely unsuited to lead the ethical debates that lie in the near future. Better, in my view, would be a position where the courts, as with most areas of great social concern, initially defer to the processes of the legislative branch where all of the important issues can be rationally debated, instead of courts charging to the forefront, and thus generating the debate as a reaction to their decisions. The issue before the Court today has not been simmering unanswered for decades while the General Assembly ignores it; as far as the record shows this is the first instance this issue has been raised in any forum in this State. -7- for support and no mother upon whom the child could depe nd. The decision the C ourt renders today has broad consequences for the State that must support children for whom there are limited or no means of support. This is another reason to defer to the Legislature to determine issues relating to the best interests of children, and the resulting State responsibility if the position of the majority were to be the law of this State. Add ition ally, the literature relating to fam ilies is replete w ith conclusions respecting the value of having fathers as a pa rt of the process of family life - available from the birth of the child. Certainly there is similar, or even greater, value in having mothers involved in the rearing of children. Until now , I presume that i t was not th ought nec essary to specif ically relate such issues to females in that mothers obviously were going to be present at birth. But with this case, according to the majority, there is to be no mother just a petri dish. One only has to contemplate what might occur as the child matures, in order to believe that this issue is best left to the representatives of the people. What happens when a child is asked to present a b irth certificate at a customs area in a foreign country (until recently that is all that was required of American citizens in many countries, and remains so in some) and a customs inspector sees that the birth certificate indicates that the person standing in front of him or her states that the person has no mother or even no father or mother? What happens when th e child prese nts such a b irth certificate to authorities outside (or inside) this State in an attempt to acquire a passport? What happens when such a certificate is presented in the admission processes of colleges or presented when one wants to enlist in the armed -8- services? How is the child going to be adve rsely affected th roughou t its minority when it has no mother fro m who m suppo rt can be ob tained an d no mo ther at all? There are many reasons why the General Assembly might decide that it is in the bes t interests of ch ildren to have a surrogate or donor mother s name on a birth certificate and that, if afterwards she could establish that she should not have the obligations of a mother, she could seek the termination of her status in order to end her legal responsibility. But the Court assumes the policy ma ntle inste ad. Certainl y, there can be answers developed in respect to all of these questions and the many others that may exist tha t I have n ot prese nted. But, courts, including this Cou rt, are uniquely unsuited for the tasks that will lie ahead. I differ from my colleagues in the majo rity, not so much because I believe them to be nece ssarily wrong in their ultimate result (as long as it w ill be applied e qually to men), but because I think they are wrong in the doing of it. This issue, and the many similar ones, that w ill now arise, are best left to those who are closer to the people than those of us in our so-called ivory towers (although it could be argued that o ur tower s are mah ogany and red ) wh o are constitutionally removed from the people of the State. By its holding, the majority, in my view, under the circumstances of the issues presented here, has discarded the principle of judicial restraint in favor of one that improp erly usurps the p owe r of the G ener al Assem bly. Somew here in this m ad rush in which o ur society is engaged, at a time when increasing population con tributes to many of the world s -9- problems, even judges should occasionally pause and say, What are we doing? I would affirm the finding of the trial court that the resolution of this issue does not lie withi n the Ju dicial B ranch o f gove rnmen t but wi thin the L egislativ e Bran ch. -10- IN THE COURT OF APPEALS OF MARYLAND No. 110 September Term, 2002 In re Roberto d. B. Bell, C. J. *Eldridge Raker *Wilner Cathell Harrell Battaglia, JJ. Dissen ting Op inion b y Harrell, J ., which Raker, J., Joins. Filed: May 16, 2007 *Eldridge, J. and Wilner, J., now retired, participated in the hearing and conf erence of this case while activ e members of this Court; after being recalled pursuant to the Constitution, Article IV, Section 3A, they also p articipated in the decision and adoption of this opinion. We dissent not because we are persuaded that the Majority opinion necessarily is incorrect, but rather because, on the reco rd before us , we are un persuade d that the M ajority opinion is correct or the question n ecessarily mus t be decided at present. W e hasten to explain the seeming conundrum. The Majority opinion supplies a judicial gloss to the Maryland statutory scheme for establishment of patern ity, 1 ostensibly in order to avoid declaring the statute violative of equal protection p rinciples, a con clusion it indic ates it otherw ise would reach if fo rced to confront the challenge frontally. Maj. slip op. at 12-17. If actually confronted with a constitutional question that appropriately may be evaded, we count ourselves among the last who would criticize such a jurisprude ntial side-step. T he specific question the Majority opinion conceives as being raised, apparently properly, by Appellant is: Must the name of a genetically unrelated gestational host of a fetus, with whom A ppellant contracted to carry 1 Chauvinistically titled, Subtitle 10 of the Family Law Article of the Md. Code ( Paternity Proceedings ) indeed sends mixed messages about establishment of the titles of parent, father, and mother. Although claiming that one of its purposes is to impose on the mothers and fathers of children born out of wedlock the basic obligations and responsibilities of parenthood (§ 5-1002 (b)(2)), most of the mechanisms for resolving questions of questioned parenthood are framed in terms of ascertaining who is the father, as the Majority opinion accurately points out. It is obvious that the statute, in its current state, is a product of simpler scientific times regarding the process of human reproduction. Paternity historically was the usual question, where unmarried or adulterous coupling was concerned, because a father s contribution leading to a birth often occurred under the cover of darkness (literally or figuratively), while a mother s giving birth to the child traditionally occurred under the bright lights of a hospital room or the eyes of a midwife, though not always so. That a woman gave birth largely was undeniable, while who the father was often was the subject of some contention. It is now undeniable that advances in the science of reproductive technologies have created new challenges and a certain amount of obsolescence in many of the underlying premises of the paternity statute as it exists presently. The Majority opinion points that out well. The situation cries out for legislative review and action, but not necessarily judicial intervention at this point and certainly not on the record before us in this case. in vitro fertilized embryos to term that resulted in children being born, be listed as the mother on the birth certificate? Maj. slip op. at 1-2. The analysis in which the M ajority opinion engages explores d eep issues, w ith ripples exte nding w ell beyond those raised on the record before us. We sh ould not se t sail prematu rely upon this g reat legal and societal ocean without a better globa l positioning s ystem (e.g., thorou gh oppo sing briefs a nd a we lldeveloped record) as a guide. Instead, we should vacate the decision of the Circuit Court for Montgomery County and remand for further proceedings. This case proceeded e ssentially as what tennis players call a walkover. That is, there was no opponent on the other side of the n et; no person or entity to expose or test A ppellant s contentions, factual or legal; a situation which the Majority opinion sweeps up and describes simply as the unu sual proced ural posture of this case. Maj. slip op. at 2. Appellant, the unmarried contributor o f the sperm that was u sed in a laboratory to fertilize the eggs obtained from the unmarried egg donor, filed a two page petition in the Circuit Court for M ontgomery County asking, among other things, that Holy Cross Hospital be authorized to report to the Maryland Division of Vital R ecords that the twins born to a third party surrogate carrier of the fertilized embryos have no mother. Appellant sought to be designated as the father and the child ren a ssigned his surna me. N o equal p rotection argu men t, exp ressly or im plici tly, was advanced. Accompanying his petition were three affidavits, one from Appellant, one from the egg do nor, and one from the surrogate carrier. The egg donor, a friend of Appellant, attested on 6 August 2001 that she was -2- unmarried at the time of donation and that it was her understanding that, if, as, and when viable embryos were created from the joining of her eggs and Appellant s sperm, some other woman would carry the embryos to term, and the child(ren) will be registered as the biological child(ren) of the father an d the surrog ate, with an attempt there after mad e to delete the surrogate s name as mother on the birth certificate.2 The surrogate, who gave birth to the children at H oly Cross, stated in her 24August 2001 affidavit, that she was no t in any way genetically related to the children born to me on August 23, 2001 " and that she did not want to b e named in any way on [ their] birth certificates . . . . She consented to the relief sought by Appellant. Her affidavit and that of Appellant were subscribed to before Appellant s then-counsel, who served as notary public. No copies of a ny written con tractual agreements between Appellant, the donor and/or the surrogate carrier were alluded to in, let alone attached to, the petition, consent, or affidavits. No avermen ts were alleg ed in the pe tition, affidavits, or consent as to consideration supporting the alleged undertakings and understandings as stated between the three participants. The petition was denied, without hearing, by succinct order of court dated 29 August 2001 and filed on 6 September 2001. On or about 17 September 2001, Appellant filed a motion for reconsideration, through his then-counsel (the same person who represented him in filing the original petition and 2 Moreover, the donor expressed in clear language that she wanted no relationship or responsibility for any children born from the fertilized eggs. Specifically, she stated I do not want my name on any birth certificate(s) . . . and if my name does somehow get placed on such birth certificate, I want it removed. -3- supporting papers and who notarized Appellant s and the surrogate s affidavits). Besides reiterating the allegations of the original petition, Appellant s then-counsel contended: The Court s denial of Petitioner s request leaves Petitioner and the surrogate in a legally awkw ard posture . The birth certificates for the sub ject children will now bear the Petitioner s name as the father and the surrogate s name as the mother. Thus, the Court s action has the operative effect of allowing inaccurate information to be filed in official State records; and of bestowing parental rights an d respons ibilities on the su rrogate who has no biological or ado ptive parental link to the children and expressly made clear that she did not want any. In so doing, the operative effect on the Petitioner is to diminish h is sole/exclusive parental position to a shared parental position in which his rights and responsibilities only extend to the point where hers (even though they are biologically and legally nonexistent) begin. The operative effect of the Court s denial also impacts future inheritance rights of the subject children and those of the surrogate s own biological children, even though they are in no way parties to this matter. None of the persons sought, or even expected, and do not want the result that will occur. Indeed, the very purpose in petitioning the Court was to obtain the court s assistance in clarifying the accurate parentage, to ensure that correct information would be filed with the S tate, and to av oid precisely the result which would come to pass in the absence of the Petitioner instituting this matter. The entire thrust of the reconsideration motion was whether reporting the surrogate as the children s mother was inaccurate. No equal protection argument regarding the application of the paternity statute was mounted. In response to the motion for reconsideration, the Circu it Court issued an order, dated -4- 2 October 2001 and filed on 4 October 2001, dec laring Ap pellant the fa ther of the tw in girls and directing Holy Cross H ospital to issue birth certificates for the children w ith Appellant s surname, but including the surrogate birth mother s name as their mo ther. On 1 November 2001, Appellan t s then-cou nsel filed a re quest for h earing on th e reconside ration reque st, complaining that he did not receive a hearing on the motion, although one was requested, and that the Court s 29 August order denying relief and its 2 October 2001 order granting some, but not all of the relief so ught or iginally, se em[s] s omew hat unc lear or in consiste nt. 3 A hearing on the mo tion for reconsideration was set for 10 December 2001. Replacement counsel entered her appearance for Appellant (and who continued to represent him on appeal) on 7 Decem ber 2001 , the same d ay on which separate co unsel ente red an appearance for the surro gate. No consideration of appointing counsel for the children was evident. The hearing on reconsideration was rescheduled for 14 January 2002. In Appellant s 14 January 2002 hearing memorandum, he nowhere raises a facial or as-applied equal protection challenge to the statutory scheme. His arguments there were that the gestational surrogate was not the mother and was in no way biologically related to the children; therefore, it was asserted to be in the best interest of the children not to have her name appear on the birth certificates. Appellant thus argued the best interest of the children standard in the case, alb eit in a way that b enefitted on ly his desired result. It was contended in the memorandum, for the first time in the proceeding, that Appellant entered into a 3 We find no lack of clarity or inconsistency. Appellant may have been chagrined that he did not get everything he sought, but he had no claim to lack of clarity or consistency. -5- variation to the traditional surrogacy contract called a g estational surrogate contract . In such an arrangement, it was claimed, while one or both of the prospectiv e parents may be biologically related to the child, [t]he surrogate provides only a host uterus . No copy of the contract was attached to the memorandum, nor was it offered at the hearing. At the 14 January 2002 hearing on the previously denied motion for reconsideration, Appellant s new counsel uttered the words equal protection for the first time in this record: You can take a putative father and as I said it a moment ago, you can han g that child on him. You can say if you don t want to be the fa ther, we w ill haul you into court. We will take your genetic m aterial. We w ill match it to the child an d if it matches, you re the father. You re the parent. It is at the moment that we can determine that the genetics match, that the obligations, duties and rights of parenthood attach to that individual. You would have an e qual protec tion argum ent if you said that well, that is not true for the mother. It is the passage down the birth canal that makes the mother the mother, not the genetics. Further relevant reference doe s not appear until ten page s later in the transcript when Appellan t s counsel o bliquely (giving her the ben efit of mu ch doub t) alludes that: The legislature has tried over the past two decades no less than five times to deal with this issue and they have not been able to do so when they have passed laws one way, the Governor has vetoed them. When they have passed laws the oth er w ay, they fail in one House or the other. It is - - there is a paucity of law. I agree with that. But should Courts be called upon to deal with these issues when the legislature d oesn t? S ometime s the court h as to lead and we can all think of the cases where the Court has done that. They all do it in the areas of Civil Rights and Equal Rights and that is where this case is. -6- Counsel for the surrogate, other than adopting a me too approach regarding what Appellant s counsel said, did not mention, explicitly or implicitly, an equal protection argument. She filed no legal memo randum and f ailed to invoke any legal authorities. In essence, the one-sided argumentative presentation to the Circuit Court was essentially purely policy-driven. In the Circuit Court s 9 July 2002 bench ruling reaffirming and explaining its earlier denial of the motion for reconsideration, the trial judge stated, among other things, that he was con cerned gre atly, on this record , with whether it was in the best interests of the twins that they be declared effect ively mot herless. The Court also saw, as a partial solution to the complications expressed by Appellan t and the surrogate mother, the prospect of a consent petition to terminate the surrogate mother s rights (but which would leave her named on the birth certificates as mothe r ). It seems cle ar that the trial jud ge did not perceive App ellant s or the surrogate s legal arguments seriously to include an equal protection challenge because he did n ot addr ess suc h a con tention. The appeal noted to the Court of Special A ppeals by Appellant was not joined by the surrogate. She filed no appeal and no brief. Her counsel, in a letter to the Court, indicated nonetheless that she w ished to join in the brief of the Appellant. Thus, the case, when taken by us, on the Court s initiative, befo re the interm ediate appe llate court cou ld act, proceeded with only Appellant s inadequate (in our view) brief and his not-much-m ore enlightenin g oral argum ent. -7- We are satisfied that, on this record, an equal protection challenge to the Maryland paternity statute, factua lly or as applied, w as neither pro perly presented, argued, or decided in the Circuit Co urt. Comb ined with th e one-sided ness of ho w the ma tter proceed ed in the Circuit Court and before this Court, and the gaps in the record, w e are unwilling to exercise the discretion grante d by Md. Rule 8-131 (a) ( [o]rdinarily, the appellate court will not decide any other issue unless it plainly appears by the record to have been raised in or decided by the trial court, but the Court m ay decide suc h an issue if necessary or d esirable to guide the trial court or to avoid the expense and delay of anoth er appeal. ) to reach and decide the issues decided by the Majority opinion.4 4 Appellant s brief in this Court is woefully inadequate to support the license taken by the Majority opinion. His entire equal protection argument in his brief is as follows: The parentage statutes as enforced by the court below do not afford equal protection of the law to men and women similarly situated. If the gestational carrier was a man she could deny parentage. And if no genetic link could be established, she would be found not to be a parent and the matter would end. Not so with a woman under the lower court ruling. She has asked to be removed from the children s birth certificates. In effect denying maternity. It is established as legal fact that she is not genetically related to either child, yet she is to be forced by the state to be the legal mother of these children. The doctor on the other hand, being a man, could challenge paternity and succeed, because he is not genetically related to the children. Such disparate treatment does not comport with Article 46 of the Md. Dec. of R. art. 46 (2001) which states that [e]quality of rights under the law shall not be abridged or denied because of sex. Under the interpretation of the §4-211 urged by Appellant, (continued...) -8- The condition of the record in the present case is reminiscent of that confronting the Court of Special Appeals in Dintaman v . Board of Cou nty Comm rs of Prince Georg e s County , 17 Md. App. 345, 303 A.2d 442 (1973). In Dintaman, the plaintiff in the trial court waited until his M otion for R ehearing, f iled after sum mary judgm ent was entered against him, to raise constitutional arguments of denial of due process and equal protection. 17 Md. App. at 347, 303 A.2d at 443. The motion was denied, without a hearing, in a terse order which made no m ention o f the co nstitution al argum ents. Id. The interm ediate appe llate court, when Dintaman pressed his constitutional attack before it, opined: It is not entirely clear that in ruling on the Motion for Rehearing [the trial judge] considered constitutional issues, and indee d it would have been difficult for h im to do so because there was no evidence against w hich such issues could be measured, and they were not developed through th e adversar y process w hich is required for their proper determination. As Chief Judge Murphy said for this Court in Vuitch v. State, 10 Md. App. 389, at pages 397 and 398, 271 A.2d 371, at page 376: But it would b e foolhard y in the extreme to 4 (...continued) no such equal protection argument would exist, because a nongenetic gestational carrier could apply to the court for a parentage order and receive one upon a showing that she was genetically related to the child and never intended to be its parent. There is already a body of law in this jurisdiction governing the protection of the rights of non-genetically related individuals who desire to fulfill the role of parent for a child. No cases are offered to support this argument. No effort is made to detail any failed legislative history in addressing the problems envisioned by Appellant, which he boldly claimed to be the case at the reconsideration hearing in the Circuit Court. See supra at 6. -9- undertake the resolution of such complex constitutional questions upon a re cord as procedurally and substantively deficient as that now before us-one in which the constitutional questions, though readily apparen t prior to trial, were raised for the first time after the State had concluded its case-in-chie f, and then only by an inapprop riate motion (gene rally alleging unconstitutio nality along a front far more limited in thrust than that presently sought to be aired), submitted without comment, or illuminating argumen t. Whether the trial judge actually considered appellant s constitutional claims cannot be ascertained from the re cord since in denying the motion he made no comment thereon, and may well have concluded, quite properly, that the constitutional questions could not be raised at that juncture of the proceedings by motion for judgment of acquittal. Of course, no thing is better settled than th e rule that a question as to the constitutiona lity of a statute will not be considered on appea l when n ot properly raised and decid ed by the low er court. Id. at 350- 51, 303 A.2d a t 444-4 5. See also H armon y v. State, 88 Md. App. 306, 316-17, 594 A.2d 1182, 11 87 (1991) (internal footn otes omitted): Pursuant to Md. Rule 8-131(a), ordinarily, we do not decide any issue unless it plainly appears by the record to have been raised in or decided by the lower court. It is clear that the limitations argument was never decided or directly passed upon by the circuit cou rt. Nor wa s the questio n ever argu ed in the tradition al sense. Inde ed, it was bare ly mentioned below. To preserve an issue for appellate review, it must first have been presen ted, with particularity, as to the trial court. An offhand remark that the statute of limitations or something like that might come into play is simply not particular en ough to allow appella te review . A party must bring his argument to the attention of the trial court with enough particularity that the court is aware firs t, that there is an issue befo re it, a nd se condly, -10- what the parameters of the issue are. The trial court needs sufficient information to allow it to make a th oughtfu l judgmen t. * * * He was required[ ] to present the issue to the trial court with enough particularity to allow a reasoned decision upon the matter. Because he failed to do so, we will not consider the issue on this a ppeal. We believe the interests of the children need to be heard and cons idered. W e would remand the case and direct the trial judge to appoint counsel for the twins and compel Appellant to pay their counsel s legal fees. Only then might a record be made upon which we m ight be s atisfied that we should go wh ere the M ajority opin ion goe s. The Majority opinion s disposition of the best interests of the child(ren) standard as inappropriate (Maj. slip op . at 27) to the context of this case depends in large measure on its declination to come to g rips with the legal meaning of parent, moth er, or f ather, in light of the admitted and relevant scientific advances apparently not contemplated by the statutory scheme. The Majority s analysis (Maj. slip op. at 18-27) beggars the meaning of these key concepts, and focuses instead on analytical differences between custody and visitation cases involving parent-versus-parent on one hand and parent versus non-parent on the other. The Majority opin ion overloo ks that it was Appellan t who injecte d the best interest of the children standard in this case. We can think of a number of emotional, material support, and possibly medical reasons why it may not be in the best interests of these children to be declared motherless. It should not be left entirely to judicial conjecture and -11- crea tivity, however, what the universe of those reasons may be. This record begs for further development before we come to grips with the issues decided by the Majo rity opinion. If Appellant wishes us to lead through uncharted Maryland waters in an area where the Legislature is better suited to consider the competing legal and societal values, but may have been unwilling to do so, he needs to do a better job of persuading us if he wants our vote. Judge R aker has au thorized m e to say that she jo ins in this dissen t. -12-
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