I’m interrupting myself (though I really want to get back to “social infertility” and what to think about it) because there is an interesting and important new case out of Florida. You can read the opinion (though it is long) and I’m sure in time there will be press, too. (I wrote about this case when it was decided by the lower court and you might want to read that, too. )
I want to offer some initial thoughts here, though think it quite possible I will find that I need to revise them as I think further. The case covers a lot of ground and might have some broad implications–or at least suggest some broader arguments.
The facts are pretty simple. DMT and TMH were lesbians in a long-term committed relationship. They wanted to raise a child together. TMH provided an egg. It was fertilized in vitro and the resulting pre-embryo was transferred to DMT’s uterus, which means DMT was pregnant with/gave birth to the child.
The two women raised the child together until they broke up. (The child was a bit over two years old.) At that point DMT asserted that TMH had no parental rights and sought to terminate her relationship with the child. If DMT was correct about that then she would probably be within her rights to terminate the relationship between TMH and the child. DMT was and is a legal parent to the child (by virtue of giving birth) and legal parents get to decide who their child sees.
While I’ve talked about many cases where two women who are both social parents of the child split up, this one has some clear distinguishing features. In addition to the de facto/functional parent status, each of the women here has a claim to one of the traditional components of legal parenthood: DMT gave birth–and historically this has allowed (or even forced) women to claim the status of legal parent. TMH is a genetic parent–and genetic relationship at least sometimes provides the basis for a claim of legal parentage. (The court calls TMH “the biological mother”–a term I choose not to use here. Footnote 3 of the opinion actually discusses the use of the term and whether it is confusing when there is some sort of biology involved in the process of pregnancy/birth. I think it is potentially confusing and so I am going to call her a “genetic mother” or a “genetic parent.”)
The problem for TMH was the Florida statute governing use of ART. It’s written with only male/female couples in mind. It provides that unless you are dealing with a commissioning (heterosexual couple), a gamete provider must relinquish any claim to parental rights and obligations. (You can see that this might make sense in cases where the gamete provider wasn’t intending to be a parent to the child.) Basically what DMT argued is that a simple application of the statute established that TMH wasn’t a legal parent–because as the statute applied TMH had relinquished any claims she might have as a result of the genetic connection.
In the lower court, TMH had prevailed by arguing that the statute didn’t apply to her, but this argument was rejected by the Florida Supreme Court. Instead, the Florida Court considered TMH’s constitutional arguments–arguments that the statute violated the US and the Florida Constitutions.
There are three distinct arguments as to how the statute as DMT employed it violated these Constitutions. Perhaps most simply, if you imagine a man in the position TMH occupied, he would clearly have parental rights. Thus, men and women are being treated differently here–and the Constitution requires that this differential treatment be justified. This is an equal protection/sex discrimination claim.
The statute also distinguishes between same-sex couples and different-sex couples–treating the former less well because they do not have access to the protections afforded by the ART statutes. (This argument has become considerably more compelling since the US Supreme Court struck down DOMA this past summer.) This is also an equal protection claim, but based on sexual orientation.
Finally, there are some cases considering the circumstances under which a person is entitled to some procedural or substantive protections before being declared a non-parent. This is a critical line of cases that has been discussed here before. If TMH falls within this protected category than the statute cannot simply operate to oust her from the status of parent. This is a due process claim–either procedural or substantive or potentially both.
In the end, the Florida Supreme Court finds that the statute, if applied to TMH, is unconstitutional for each of the reasons just outlined. It impermissibly discriminates based on sex and sexual orientation AND it deprives TMH of her fundamental right to parent her child. Any of these alone would constitute a substantial holding worthy of consideration, which is to say there’s a lot to chew on here.
I think I will stop here for now–there is, as I say, a lot to chew on (and then digest). But I do want to pull out one quote that particularly struck me:
It would indeed be anomalous if, under Florida law, an unwed biological father would have more constitutionally protected rights to parent a child after a one night stand than an unwed biological mother who, with a committed partner and as part of a loving relationship, planned for the birth of a child and remains committed to supporting and raising her own daughter.
One can, of course, debate what precise rights that unwed biological father ought to have (and we’ve done that here), but surely the court is right–his rights cannot be greater than those of a woman in the same position. It’s a very tidy way to think about it.