The Two Mother Egg Donor/Birth Mother Family: A Legal Challenge

Sometimes when a lesbian couple wants to have children one woman provides and egg that is fertilized and then transferred into the other woman’s womb.   I cannot think that this is terribly common, but it arises with some regularity and it poses special legal challenges.   There’s a case like this in Florida in the news now.   You can read the most recent opinion in the case here.   Note that this is the mid-level appellate court opinion and the reason that the story is in the news  right now is that the Florida Supreme Court is considering review.    

I don’t think the facts here are in dispute, although the details are sparse.   The two women got together in   1995.  W1 (there are no names, so I’m just going to call them W1 and W2) was infertile.   W2 provided an egg that was fertilized in vitro and transferred to W1.   (I’m assuming the sperm was from an anonymous provider.  I won’t focus at all on him here.) 

A child was born in 2004.   W1 and W2 gave the child a hyphenated last name, sent out a birth announcement and both participated in the child’s life.  

Then things fell apart.   They separated in May 2006.  For a time W2 paid child support and W1 accepted that.   Support ended when it was agreed that the child’s time would be shared evenly between the two women.  (This is fairly typical.)  But things got worse and in December 2007 when the child was about 3 1/2, W1 took the child and left the country.   Eventually W2 tracked down W1 and the child in Australia.   This lawsuit (properly filed in Florida) followed. 

The question, of course, is whether W2 is a parent.  If W2 is a parent then she has a right to have time with the child and what W1 did is clearly a violation of law.  If W2 is not a parent, then W1 is within her legal rights.   You could, of course, take the position that what W1 did is wrong whether it is legal or not.  To sever the relationship between the child and W2 (assuming here that it was functionally a parent/child relationship) is a dreadful thing.   But I’m going to focus on the law here, as I typically try to do. 

Notice the various claims each woman can advance.   W2 can claim parenthood via genetics, by intention and by function.   W1 can claim parenthood by giving birth, intention and function.   Does one factor or combination of factors beat the other or do they both win–which means they have to share?

If you choose DNA as the criteria for legal parentage, then W2 is a parent and W1 is not.  If instead you choose pregnancy/birth as the criteria, then W1 is a parent and W2 is not.   Neither of these approaches is satisfactory to me.   It seems clear that there was a real family in which the child lived and in that family there were two parents.   In my view the law should recognize and protect that reality, which  means it should recognize two legal parents here.   This is the conclusion the appellate court concluded as well. 

I won’t take the time just now to review the legal arguments in detail.  They depend in part on interpretation of Florida statutes and that’s a bit more detail than I often choose to indulge in.  I’d prefer to stay with the broader question:  what should the outcome be here and why?  

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