News From Florida–Lesbian Mother/Egg Donor Must Have Rights

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.





21 responses to “News From Florida–Lesbian Mother/Egg Donor Must Have Rights

  1. i do not understand the initial application of the Florida statute. if a gamete donor is supposed to relinquish parental rights, and TM never relinquieshed parental rights, why is she considered a donor and not a parent? or am i misunderstanding the statute?

  2. I’m a bit on the fly, so this could be wrong but I think that Florida law was set up to ensure that when a couple used ART the couple ended up the only people who could be legal parents. It did this by automatically extinguishing any claims of the gamete provider. The provider could not possibly retain rights in the face of the statute as written. And the couple had to be male/female–which is where the discrimination came in.

    There was a separate argument here about whether she actually specifically waived or relinquished parental rights by signing a consent form that included that provision. (it’s the standard form consent for egg donors, I think.) That’s the last issue the opinion gets to.

    • would it be correct than to assume that Florida does not recognize surrogacy? if a woman has gestated another woman’s egg she is the mother no matter what? but i am reading that florida is so surrogacy friendly that people actually come to Florida for the purposes of surrogacy!
      This is just too inconsistent.

      • From what I remember from other cases, Florida will recognize surrogacy only if a gestational surrogate carrying the egg/sperm from a married couple is used. I am not sure what happens when it’s a surrogate with anonymous donor egg. In a case in Florida where the surrogate gave birth to a child from her own egg and changed her mind she was allowed to keep the baby.

      • Florida does recognize surrogacy under certain circumstances. One thing that might distinguish this from surrogacy, though, is intention. Although the birth mother may now dispute this, all the circumstances surrounding conception/birth point to a plan to jointly raise the child. (Money from joint accound, hyphenated name on birth certificate, nature of birth announcement and so on.)

        But this is not to say that you are wrong to raise the confusion this causes. Seen from a difference and without detailed context, this might be a surrogacy where birth mother was surrogate for egg provider. Or it might be an egg donor situation–with birth mother as intended mother. Or it might be what it was–two women planning to raise child together. The law could recognize those as three different situations or it could treat them all alike. It just depends how the law is set up.

        Bottom line here is that Florida court did not treat the genetic mother as an egg donor. An egg donor would not have had rights.

  3. in the event that a parent officially relinquishes parental rights, but continues to function as a parent; i would view the papers as meaningless.

    • this of course assumes she was a parent before the relinquishment, but doesn’t the very fact of relinquishment imply that yes she was a parent?

    • I’d be so inclined, too. This is actually why I think substance should trump form.

      Plus here any relinquishment was just a stock provision in the clnic’s form contracts. It’ s not (to me, anyway) the same. There’s a CA case (cited in Florida opinion–KM vs. EG, maybe?–where the form provisions are not given force when the entire course of events suggests that the egg provider never meant to surrender any rights. Same idea here.)

  4. in the previous posts, buried in the 177 comments, you heard me complain a lot about the bias of langauge. This case is a perfect example, from the other direction, about the importance of language as well. Just as unequal language leads to a biased result, equal language leads to and equal results. On the very first page they refer to BOTH women as (biological and birth) mothers, and lo and behold, they arrive at the decision that they are both mothers. Imagine had they used the terminology egg donor, they could have walked out with something totally different.
    Darn! I wish i had this case before completing my letter to the ABA, I could have used it as a nice counter example.

    • I don’t want to bury the importance of this observation. I think the language is critically important. I agree that if you call someone a “[insert modifier] mother” you are building her parental status into your designation. You can try to work around the language. The two women here could be “the woman who provided the egg” and “the woman who became pregnant/gave birth”. (I actually think “egg donor” also builds the answer into the title. I think my phrasing is more neutral.)

      But while I agree with this point, I’m afraid we’re stuck with all this differently modified mothers–of whom one or two will be “legal mothers”–which is to say people with right. In fact, maybe this isn’t so bad. “Birth mother”–as it is used, say in adoption–seems like a perfectly appropriate term, and we all know that in adoption the birth mother is not a legal mother. It doesn’t seem to cause confusion there.

      But does the court here telegraph where it is going? Yes. I think they conclude she wasn’t an egg donor because that is not the nature of the agreement between the women. And that’s where the key difference lie–in the surrounding circumstances.

      • it was noted in the opinion that they actually had a debate about what language to use. That’s good in my opinion, because it means that someone actually sat and thought about the implications of the words. whereas in the schissel case they adopted the word surrogate (and NOT surrogate mother) with no thought about it, so they ended up treating her as not a mother- even though they could find no legal justification to withdraw her parental status. A bias unexamined is far more powerful.

  5. I think that all the various rulings and rules are making a mess of everything and are looking at totally the wrong people when it comes to who has rights and who owes who what. The whole damn system needs to be corrected.

    I know I harp on the public health aspect a lot but it is a very big deal that the wrong people are getting recorded as parents on birth certificates because it totally messes up the flow of information in all the effected families. The woman who gave birth is not related to the child she delivered, yet she is recorded as the child’s mother. A woman who is not related to this person stands for all eternity on this public health document, this medical record – as a mother. Now all her relatives have access to the birth record of the child she delivered and any children he/she ultimately has yet, it does not do them any good its a lie. The person who really is the child’s mother whose relatives really are related to him/her can’t get access to the kids birth records and don’t have any legal kinship rights because his Mom is not named as Mother on his birth record. And Dad? Where’s Dad? Where are the kinship rights there?

    We need to change the Uniform Parentage act to eliminate the word “donor” and refer to people as the parents that they really are. Any person with offspring should be named as a parent on their offspring’s birth record end of story. No boo hoo, no what about the intended people – none of that. We are talking about the falsification of medical records, vital statistics, public health data, family health information and rights to access the records of our relatives the rights to know our relatives identities. All of this legal custodial crap intentional crap is absurd. It interferes with accurate record keeping and interferes with the rights of entire families to access true and accurate information about themselves and their relatives. It needs to stop. There can be no reasonable objection to having to disclose the truth and having to record the truth. There is no reasonable defense of concealing the truth as it relates to other people and their identities and their health. There is no reasonable defense to contriving and fabricating and impersonating familial relationships on medical records, on vital records, in statistics and public health data.

    We need to not call women mothers on birth records if the child they deliver is not their own damned offspring. Its as simple as that because they are lying and will be lying to all their relatives and to the government and the child they deliver won’t have access to the information they need and their relatives won’t have access to their information either and their real mother won’t be obligated legally to support or care for them as is happening here in this case. It’s a mess. This child could end up permanently tied to an unrelated woman just because she delivered him/her. This woman is his real mothers ex girlfriend and she wants to kidnap him/her and keep him/’her from his real mother and his real relatives. Screw care giving and social parenting. This woman is kidnapping her ex’s kid. The kid will get over loosing his mom’s old girlfriend. Kid’s move on. Sometimes their parents break up with people they’d bonded with but boo freaking hoo its not his mother and her family is not his family its all pretend. Its all appearances. I’m sure she’s lovely but she’s kind of nuts cause she’s kidnapping her ex’s kid. that’s all there is to say about that. I hope the mother gets her kid back and learns her lesson

    • i wouldn’t really focus on the public health value of birth certificate data. nothing but rough estimates, since so much information is messed up on them any way.

    • i think you are underestimating the connection children form with their parents, as well as the psychological impact of pregnancy for most people.

      • psychological impact? its not real ki. so what if the woman who was pregnant feels bonded to the kid, that is her experience, not the person she delivers birth to and pregnancy has no lasting impact on the person delivered unless they are damaged by it like she drank or was malnurished.

  6. It is incredibly irresponsible for gay and lesbian couples to have children in the state of Florida without first obtaining an adoption in a friendly state. I’m so tired of seeing these cases that could have easily been avoided had the two parties bothered to follow a legal process available in many other jurisdictions. Florida is one of the most hostile states when it comes to gay and lesbian parents and families. It’s simply an irresponsible and crummy thing to do to the child to not document parentage in a firm way if you’re going to reside in that state.

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