I wanted to add a couple more notes about the Florida opinion I wrote about a couple of days ago. And while I’m doing that, there’s a Nevada opinion from just a little while back (October 3) that I wanted to tie in here. It’s virtually a mirror image of the FL case.
First, two more points about the FL case–what I think of as the good and the bad, really. And these are taking a step away to get a little bit of a longer view.
The good: From what I can tell (and I do not have any access to the facts) the court decided this case in a way that I think reflects the reality of the family life that gave rise to it. There are many indications that both women functioned as parents to this child during the first two years of the child’s life. Under those circumstances, I think the law ought to recognize and protect the child’s relationship with each of the women. And that appears to be what the court here is doing. That–to me–is a good thing.
The bad (or at least the not-so-good): The court didn’t reach its conclusion on the grounds I’d like. It seems to me that the reality of the child’s life did matter to the court–but mostly because it helped the court reach a conclusion that TMH was not an egg donor. The underlying critical fact that gave TMH her claim was her genetic connection to the child. Absent that genetic connection, it seems to me the case might well have come out differently. It’s no news to any of you that I’m not very happy about that reasoning, even if it allows the court to reach the right result in this particular case.
Before going further down this line of thought, I wanted to introduce a similar case, one that reach the Nevada Supreme Court last month. In some ways it is a mirror image of this case, as you’ll see when I describe the facts.
In the Nevada case, Veronica Damon provided an egg that was fertilized in vitro. The resulting pre-embryo was transferred to Sha’Kayla St. Mary’s uterus. St. Mary gave birth to the child in 2008. The women split up. St. Mary’s acknowledged that Damon was the genetic mother of the child and contended that both women should have parental rights. Damon argued that St. Mary was simply a surrogate and so should have no parental rights. In its October opinion, the Nevada Supreme Court determined that St. Mary should have an opportunity to prove that she wasn’t a surrogate but was, instead, a coparent. (You can read a news story about it, but if you want to find the opinion, go here and click on the right hand column across from October 3.)
The similarities between the two cases are striking: In both cases, two women decided to have a child together. (In both cases, one of the women would dispute this statement of events, but in both cases there are an awful lot of circumstances around the case to support it.) In both cases, one woman provided an egg and the other was pregnant/gave birth. And in both cases, one woman subsequently challenged the legal status of the other. (At the same time, the other (non-challenging) woman contended that both women should have parental status.)
And then there’s the striking difference–in one case the woman who provided the egg challenged the parental status of the woman who gave birth, while in the other the woman who gave birth challenged the parental status of the woman who provided the egg. In the first instance (the NV case) the woman characterizes her ex-partner as a surrogate. In the second (FL) the woman characterizes her ex-partner as an egg donor.
And there’s one more similarity to note: In both cases the state supreme courts seemed willing to accept that both women were mothers–though it might depend on proof of the specific circumstances alleged. That in itself is a striking development. (I’m inclined to say that no only to both courts accept that both women could be mothers, they would both be “natural mothers”–which is to say they are both recognized as legal mothers without the necessity of adoption.)
Now you’d think all of this would make me happy, given my generally supportive views of lesbian families and all that. But there is something here that worries me.
Both of these couples did something extraordinary, expensive and complicated–one woman provided an egg to the other, necessitating the use of IVF. (DMT could not use her own eggs, so she was going to be doing IVF no matter what, but in the NV case the women elected this route.) The whole egg harvesting/IVF process is not going to be affordable for a lot of lesbian couples. And even for some (many?) who could afford it, the intrusiveness and risk of an unnecessary medical procedure might be something they’d prefer to avoid. Yet the law appears to be tilting towards favoring that course of action. Indeed, it may be that even when it isn’t medically necessary, in some places (FL, perhaps?) it may become legally necessary to engage with these technologies. This I find disconcerting, to say the least, and will pick up on next time.