What Makes A Woman A Mother?

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.

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9 responses to “What Makes A Woman A Mother?

  1. Like it or not Julie – genetic linkage is important for a whole host of reasons. I don’t have time to read the court documents but I would assume the case was based on best interests of the child on two fronts – the genetic linkage and parental bond. She may have lost if both fronts weren’t put forward as the bond had been severed for close to or a full three years if they separated at age 4 and the case was at age 7. The argument could have been the bond wasn’t there do to the age at separation and the likelihood of her having distinct memories. They should have done a 2nd parent adoption out of state to secure both parties rights.

    More of these cases will come up with ART not being court sanctioned parentage given the divorce/separation rate.

    • I do recognize that genetic linkage is important for a number of reasons and I don’t fault the lawyer for invoking it as one argument in favor of recognition of TMH has a parent. It’s hard to say, however, whether anyone factor is decisive here. Suppose they had used a third-party egg provider but all other facts remained as they are. Would TMH have been recognized? I’d like to think she would, but it is a less strong case and could be distinguished.

      Alternatively, suppose TMH really did fit the description of an egg provider with no intent to parent or performance as parent. Would she be recognized the, based solely on the genetic link? I’m inclined to think not, but at a minimum I’m confident in saying the court would see that as a different case.

      On a broader point: In theory the recognition of parents is not supposed to be based on a specific analysis of the best interests of the particular child in question. Doing that undermines the protection given to parental rights–because anyone can come along and challenge the parent based on a potentially very intrusive BIC argument. So instead, a particular test for recognition of parents is often justified as resting on some generalized assumptions about what is best for children–i.e. it is usually better for children to have the [fill in the category] recognized as parents. (This is a rather short and perhaps inadequate rendering of what I mean, but it’s elsewhere on the blog.)

  2. well here is a case in which even I would say there are two mothers at the time of birth, although to be technical, she is more of a father than a mother- except for the terms being so gendered
    if the egg had come from some far off anonymous donor however, I would have treated her as a step parent

  3. what if there was a male father in the picture? that would surely complicate matters further. In that case I might even say there are 3 parents despite my usual opinion that when it comes to parentage, 3 is a crowd. In the past, I’ve stated that the genetic parent takes precedent over the gestational carrier (surrogate), but this case is different because the surrogate actually stuck around to care for the kid.

    • Yes, I think this case presents all the possible bases for parentage rolled into one. That’s why on the one hand, it’s fairly easy (both women should be parents) but on the other hand, it’s hard to say exactly why. (You can mix and match any of a number of criteria.)

  4. The child has one mother and one father plus she has a social parent. She’s got two parents one social parent. I’m going to my congressmen’s office this week to discuss getting federal recognition of genetic relationships so that this crap won’t be a problem anymore. All the families I helped reunite are not legally considered family and that is freaking absurd. Did you know that people can claim immediate relatives like siblings or parents as their dependents if need be? If your elderly sibling was ill and you wanted to take them in and care for them you could claim them as a dependent but not people whose mothers or fathers were gamete donors and not adopted people or people whose fathers were not listed on their birth certificates.
    The child’s mother was obviously beside herself upset that her baby was kidnapped the fact that she was kidnapped by the person who gave birth to her is besides the point. Unfortunately she’d established a bond with her and I don’t think she should be sent to jail I do think both of them should care for her.

    • In some states, if an adult child who had been adopted wanted a legal relationship instead with their biological parent, the biological parent could then actually adopt their biological child, correct?

    • When you say that the child has one mother and one father plus a social parent do you mean to suggest the mother (who is for you the egg provider, right?) is not a social parent? Would you instead say that the child has one mother, one father and two social parents, one of whom is the mother? (We can agree that the man you designate “father” is not a social parent, right?)

      I suppose what I’m asking is whether you can fit into more than one category. Can you be a mother and a social parent or do you have to be one or the other?

      This leads me to wonder about what (in your view) is the importance of being a social parent? Does it matter in any of the decision making the court has to do? Even if I conceed that the genetic link has meaning I want to treat the egg provider (who intended to have a social relationship with the child and does have one) differently from the sperm provider (who did not intend to and does not). Would you treat them exactly the same? I’m inclined to think the child here loses big time if what she ends up with is only the egg provider and the sperm provider (who as far as I can tell she has never laid eyes on) as recognized parents. Even though I think that DMT behaved badly, I cannot deny that she functioned as a parent for a significant period of time.

      In general family relationships are creatures of state rather than federal law, so that the change you propose (recognition of family relationship based solely on genetics) is a very substantial one.

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