In Maryland, conception by artificial insemination is covered by statute. Estates and Trusts Article § 1-206(b) states:
“A child conceived by artificial insemination of a married woman with the consent of her husband is the legitimate child of both of them for all purposes. Consent of the husband is presumed.”
This statute presents certain challenges to the estate administration, including, for example, the open-ended nature of the class. The MBSA is proposing revisions to this section as part of an examination of legislation concerning posthumously conceived children.
The situation concerning children by surrogates is not settled. In Johnson v. Calvert, 851 P.2d. 776 (Cal.1993), cert. denied, 510 U.S. 874 (1993), and cert. dismissed, 510 U.S. 938 (1993), a husband and wife sign a contract with a woman to provide surrogate services (carrying the wife’s egg that was fertilized by the husband). The surrogate had agreed to relinquish all parental rights of the child upon birth. The surrogate later changed her mind and claimed parental rights. The court held that the question should turn on the intent of the parties as shown by the contract and declared the husband and wife as the sole parents. In another California case, In re Marriage of Buzzanca, 72 Cal. Rptr. 2d. 280 (Cal. Ct. App. 1998), a husband and wife agreed to have an embryo unrelated to either of them implanted in a surrogate. Before the birth of the child, however, the husband and wife split up. In that case, the surrogate mother did not claim parenthood. The wife claimed motherhood and sought child support from the father. The court held that the wife and husband were parents because they had consented to the procedure. Other courts have instead focused on genetics and gestation, holding that genetic connection to the child is of paramount importance in determining legal maternity. See Culliton v. Beth Israel, 425 Mass. 285 (2001); Belsito v. Clark, Ohio Misc.2d 54 (1994).