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4.0 Transfers to Children, Reproductive Technology Maryland Estates and Trusts Article sets forth the rule regarding illegitimate children. Essentially, a child born to parents who have not participated in a marriage ceremony shall be considered a child of the mother. To be considered a child of his or her father, one of the following circumstances must be established: (i) a judicial determination in a paternity suit, (ii) the father has acknowledged himself in writing to be the father, (iii) the father has "openly and notoriously" recognized the child to be his child, or (iv) the father has subsequently married the mother and acknowledged himself orally or in writing to be the father. Md. Code Ann., Est. & Trusts § 1-208(b). The first method of determining paternity (judicial determination) may be accomplished even after the putative father's death. Taxiera v. Malkus, 320 Md. 471 (1990). If there is a situation where paternity has not been determined absolutely and the father has died, it may be prudent for a child wishing to claim paternity of the decedent to seek a court order to preserve DNA evidence for a subsequent paternity action. Section 3-107 of the Estates and Trusts Article states that a child of the decedent who is conceived before death of the decedent but born afterwards shall inherit as if he had been born during the lifetime of the decedent. See, e.g., Harris v. Brinkley, 33 Md. App. 508, 514 (1976). Under the common law tradition, there was a rebuttable presumption that the normal of period of gestation was 280 days (10 lunar months). If a child claims conception before 280 days of the birth, the burden would be on the child. An adopted child's right to inherit from his or her natural parent has evolved over time. In Hall v. Vallandingham, 75 Md. App 187 (1988), the court held that the adoption terminated the child's right to inherit through the natural parent. Here, Mr. Vallandingham died and was survived by his widow and their four children. Four years later, the widow remarried a man who adopted the children. Some time later, Mr. Vallandingham's brother died childless, unmarried and intestate. His sole heirs were his surviving brothers and sisters and the children of the brothers and sisters who had predeceased him. The Orphans' Court for St. Mary's County transmitted the issue to the Court of Special Appeals for determination. The court held that the adopted children were not entitled to inherit from the natural uncle because they had been adopted – thereby terminating all of their rights to the natural parents. This is the rule under § 1-207 pertaining to adopted children: "An adopted child shall be treated as a natural child of his adopting parent or parents. On adoption, a child no longer shall be considered a child or either natural parent, except that upon adoption by the spouse of a natural parent, the child shall still be considered the child of that natural parent." The Uniform Probate Code states that the adoption of a child by the spouse of a natural parent has no effect on the right of the child or descendant of the child to inherit from or through the other natural parent. See Unif. Probate Code § 2-114. Similarly, in Maccallum v. Seymour, 686 A.2d. 935 (Vt. 1996), Vermont held that the denial of an adopted person's right to inherit through the adopted parents or ancestors was unconstitutional as a denial of equal protection. 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." 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. In Adoption of Tammy, 619 N.E.2d. 315 (Mass. 1993), the court approved of an adoption of a child (conceived by artificial insemination) by Dr. Susan Love and her same sex partner. The Court held further that the adopted child could inherit from both mothers as a child of each. Dr. Love is known for her best selling book on breast cancer. In O'Neil v. Wilkes, 439 S.E.2d. 490 (Ga. 1994), the Georgia Supreme Court rejected virtual adoption. That case turned on the fact that the child's relatives who placed the child with a family that "virtually adopted" the child did not have the legal authority to enter into a contract for the child's adoption. Thus, it followed that there could be no virtual adoption. In a strong dissent, Justice Sears set forth a basis for establishing virtual adoption. Under Justice Sears' theory, the virtual adoption was a contract. Spears argued that, in this case, the child had fully performed the contract, making it enforceable regardless of the statute of frauds. The dissent held that "where a child has fully performed the alleged contract over a course of many years or lifetime and can sufficiently establish the existence of the contract to adopt, equity should enforce the contract over the objection of the adopting parents' heirs that the contract is unenforceable because the person who consented to the adoption did not have the legal authority to do so." Id. at 493. The virtual adoption here was defended on an estoppel theory. The dissent outlines also the shortcomings of basing equitable adoption on a contract theory and stated a preference for a broader equitable basis for virtual adoption. In Board of Education v. Browning, 333 Md. 281 (1994), the Court of Appeals upheld virtual adoption in Maryland. The primary grounds were based in contract theory. In Browning, however, the issue was not whether the child could inherit from the adoptive parent but whether the child could inherit through the adoptive parent. The court held that virtual adoption was not a true adoption but simply a mechanism to enforce an agreement between the child and the adopting parent based on estoppel and other equitable principals. It was not, however, an actual adoption (which is solely governed by the statute). It was held in Browning that virtual adoption was not a basis for upholding inheritance through the adoptive parent. Because there was no other heir, the estate escheated to the Board of Education. Judge Eldridge filed a spirited dissent stating that the strong presumption against escheat should have triggered the opposite result. In McGarvey v. State, 311 Md. 233 (1987), the court addressed whether virtual adoption bound the state to accept the smaller inheritance tax (1% at that time) that governed a transfer from parent to child or whether the collateral tax rate, which covers a transfer to a non-family member, applies. The Court of Appeals held that virtual adoption was a private action enforcing rights between the child and the decedent. It did not effect the tax rate; the tax rate was deemed something that would only be impacted by a formal adoption. In Trimbel v. Gordon, 430 U.S. 762 (1977), the Supreme Court held that it was a denial of equal protection to preclude a non-marital child from inheriting from the father. Maryland implicitly adopts this result by statute in Estates and Trusts Article § 1-208. As noted previously, the Maryland statute provides that an illegitimate child shall inherit from the father provided such child can establish paternity. 4.6 Pushing the Envelope of Reproduction Technology In Hecht v. Superior Court, 20 Cal. Rptr. 2d. 275 (Cal. 1993), the California courts wrestled with the issue of "ownership" of vials of frozen sperm. In that case, the decedent left the sperm specimens to his girlfriend with various provisions in his will that would come into play if he was survived by additional children as a result of the use of those samples. The trial court held that the sperm should be destroyed – based on public policy grounds. The California Court of Appeals reversed, holding that the sperm should go to the girlfriend per the intent of the testator. Under common law, a lifetime gift to a child was presumed to be an advancement. Thus, at death there would be an adjustment according to the lifetime gift. [The mechanism for the adjustment was to bring back the value of the gift to the "hotch pot" and then recalculate the split of the residue for specific bequests in light of the lifetime gift.] Under Maryland law (as well as under most states) a statute has reversed the common law presumption. Now, any property given in lifetime to an heir shall be treated as an advancement only if it is declared in writing by the decedent or acknowledged in writing by the heir to be an advancement. Md. Code Ann., Est. & Trusts § 3-106. Under the common law, no living person having an heir (therefore no heir) could be seen as having a property interest in an inheritance. Thus, under common law, expectancies could not be transferred. A purported transfer of an expectancy, however, can be enforced in equity if it is for adequate consideration.
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