Born to No Mother: In Re Roberto D.B. and Equal Protection for Gestational Surrogates Rebutting Maternity

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This Comment argues that existing tests for determining legal maternity in cases of surrogate births are inadequate because such tests fail to protect gestational surrogates from compelled maternity and resulting equal protection violations. In fact, the existing theories and tests themselves frequently cause the equal protection violations.

This Comment agrees with the holding of the Maryland Court of Appeals in In re Roberto d.B. and asserts that the court’s opinion appropriately grasps the import of equal protection in instances of gestational surrogacy. Part II of this Comment frames the history and medical technology of gestational surrogacy.

Part II also examines the four prevailing legal theories that influence or control adjudication of maternity in cases involving gestational surrogates: (1) the parties’ intent; (2) the parties’ genetic contributions; (3) gestational primacy—i.e., giving birth indicates legal maternity; and (4) the best interests of the child.

Comparing In re Roberto d.B. to past cases, Part III illustrates how the four theories fail to guarantee gestational surrogates the equal protection of the laws.

Part IV examines the implications that In re Roberto d.B. will likely have on statutory interpretation in Maryland.

Finally, Part V concludes that as gestational surrogacy and other forms of assisted reproductive technology become more commonplace, any legal test for adjudicating maternity must incorporate equal protection considerations that safeguard women from compelled maternity by affording women and men equal opportunities to rebut parentage.



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American University Journal of Gender, Social Policy & the Law