I am now back and, of course, playing catch-up. I’ll start with this case, decided in Florida on December 23. It’s a lengthy opinion, but I’ll hit some of the high notes here if you do not wish to read the whole thing. (The facts seem to be undisputed, which is at least in part because of the legal posture of the case. I will just take them as they are recited by the court.)
I’m afraid this is rather another episode of “lesbians behaving badly,” but at least this one has a happy ending. The story begins with TMH and DMT, a lesbian couple who wished to have a child. The couple got together in 1996. When they wanted to have a child they discovered that DMT was infertile. TMH therefore provided an egg which was fertilized in vitro and then transferred to DMT. DMT gave birth to a daughter on January 4, 2004. (This means the child is now around seven, something you might want to keep in mind.)
It seems clear that the plan was for the women to participate as co-parents. There’s lots of supporting evidence–hyphenated last name, birth announcement, public presentation of the family and so on. The women separated in May, 2006. The child stayed with DMT and TMH provided child support for a while. Then the women decided to divide the child’s time between them equally, which obviated the need for child support.
In December, 2007, DMT barred TMH from seeing the child. She quit her job and took off for (it was later discovered) Australia. This is the behaving badly part. By then the child was just short of four and obviously had well-established ties to both women. For DMT to completely sever the relationship between the child and TMH is to do violence not only to TMH but also to the child.
It took some time for TMH to locate DMT and the child, but eventually she did and she filed suit to gain recognition as a parent and access to the child. (The suit was properly filed in Florida because that was where DMT had taken off from.) There were several problems TMH had to overcome. Only DMT was listed on the birth certificate. (That’s because she gave birth to the child, of course, and because TMH couldn’t be listed as “father.”) Further, DMT hadn’t adopted the child, likley in part because until quite recently, Florida wouldn’t have allowed a lesbian or gay man to adopt. (This would have been what is called a second-parent adoption, because the adoption would have added a second parent rather than replaced the first one.)
But TMH did have a variety of bases on which to claim parenthood. She was the source of the genetic material and thus could claim parentage based on DNA testing. She was an intended parent, a point often important in cases involving children born from ART. And she functioned as a parent for a number of years.
If you read through the court’s reasoning, all of these factors seem to influence the decision. Perhaps the latter really comes to be the most important. In the end, the court recognizes the actual family in which the child lived.
This is one of those cases with so many different factors pointing in the same direction (that both women are mothers) that it may be difficult to say that any one is conclusive. A woman might be an egg donor (and hence, not a mother) but this woman was not. A woman might function as a parent without a genetic link and I’m not sure that the court would recognize her status.
So it’s difficult to know what to make of it all, save that I think the court reached the correct result. (You can read a different but essentially consistent take on the case on Professor Nancy Polikoff’s blog.) I have misgivings about the reliance on genetic linkage (which should be no suprise) and I very much hope the court would reach the same conclusion even had the egg come from a third-party. But misgivings or not, I certainly understand why TMH’s lawyer invoked every possible basis on which to claim parenthood and I’m awfully glad the court go this one right.