Wednesday, January 04, 2012
Lesbian Custody Battle: Florida Court Orders Birth Mother to Share Custody with Genetic Mother
As reported by the Orlando Sentinal, the 5th District Florida Court of Appeals has ruled that a birth mother must share custody of the child that was conceived with her lesbian partner's eggs, and that Florida' s laws relating to egg donation were unconstitutional as applied to the two women.
By way of background, the case involves a same-sex lesbian couple who had been in a committed relationship for 11 years, and who decided to conceive and to have a child together. After learning that one of the women, a 39-year-old law-enforcement officer, was infertile, it was decided that the other woman, then 34 and also a law-enforcement officer, would donate her egg to be fertilized. The fertilized egg was then implanted in her partner's womb, and a baby girl was born the first week of 2004.
Three and a half years later, and following the separation of the two women, the birth mother disappeared with the child, leaving the country without telling her former partner where they had gone. Eventually the egg-donor mom tracked them down in Queensland, Australia.
The egg-donor/genetic mother brought a petition under Florida law asking the court to, among other things, declare that she was the legal mother of the child, grant her custody of the child, and order a corrected birth certificate identifying her as the parent. Section 742.14 of Florida law - concerning the donation of eggs, sperm, or preembryos - reads in relevant part:
The donor of any egg, sperm, or preembryo, other than the commissioning couple or a father who has executed a preplanned adoption agreement [... ], shall relinquish all maternal or paternal rights and obligations with respect to the donation or the resulting children.
Applying existing Florida law, the trial court judge DENIED the genetic mother's requests for parental recognition, writing:
Same-sex partners do not meet the definition of commissioning couple. There really is no protection for [Appellant] under Florida law because she could not have adopted this child to prevent this current set of circumstances. I do not agree with the current state of the law, but I must uphold it. I believe the law is not caught up with science nor the state of same-sex marriages. I do think that is on the horizon.
The trial court judge acknowledged that family planning options were limited to the lesbian couple when they decided to have and raise a child together, including the option to get married and to establish parenthood by adoption. The trial court judge wrote presciently, "If you appeal this, I hope I'm wrong." The genetic mother appealed.
On appeal, the 5th District Court of Appeals in Florida did indeed reverse the lower court's decision, holding that Florida's existing interpretation and application of Section 742.14 to the genetic mother was unlawful and violated her rights under the Florida and United States constitutions.
In reaching its decision, the appeals court brushed aside the birth mother's argument that the genetic mother was a "donor" under Section 742.14, and therefore had relinquished her parental rights. After examining the factual record and noting that the statute did not specifically define "donor" , the judge wrote:
Based on the uncontradicted facts, [the genetic mother] would not be a donor under this definition because she did not intend to give her ova away. Rather, she always intended to be a mother to the child born from her ova and was a mother to the child for several years after its birth. from her ova and was a mother to the child for several years after its birth.
The appeals court also disregarded the birth mother's argument that Florida's laws prohibiting adoption by same-sex couples barred recognition of parenthood by the genetic mother, stating:
[W]e do not discern any legislative intent that the prohibitions of that statute apply to deprive either woman of parental rights to a child conceived through the reproductive process employed here, and we can find no prohibition to lesbian women utilizing that process to conceive a child.
In its opinion, the 5th District Appeals Judge requested that the Florida Supreme Court decide a narrow constitutional question: whether a woman in a lesbian relationship who gives her egg to her partner in order to have a child give up her parental rights to the child.
The Judge also sent the case back down to the trial court to make an appropriate order of custody, visitation, and support, but not before making an important philosophical comment on the court's role in parenting cases:
Parental rights, which include the love and affection an individual has for his or her child, transcend the relationship between two consenting adults, and we see nothing in this record that makes either [birth mother] or [genetic mother] an exception that places those rights in one to the exclusion of the other. It is unknown what caused these two women to cross the proverbial line between love and hate, but that is a matter between [birth mother] or [genetic mother]. Their separation does not dissolve the parental rights of either woman to the child, nor does it dissolve the love and affection either has for the child.
Read the appellate opinion of Judge Sawaya in the case of T.M.H v. D.M.T. in its entirety here: http://www.5dca.org/Opinions/Opin2011/121911/09-3559.op.pdf
Tuesday, December 13, 2011
Downloadable Brochure: Co-Parent Adoption, A Guide for Same-Sex Parents in Massachusetts
Vaughn-Martel Law has released a brief downloadable brochure entitled: Co-Parent Adoption, A Guide for Same-Sex Parents in Massachusetts.
Generally, Adoption refers to the legal process of creating a legal parent-child relationship where previously one did not exist. Co-Parent Adoption (also called "Second-Parent Adoptions and similar to Step-Parent Adoption) refers to the joint adoption of a child by two parents, one of whom is already biologically or legally related to the child. The brochure briefly answers some basic questions like, "Who Needs Co-Parent Adoption", "Is a Home Study Required", and "Do We Need to Terminate Our Sperm or Egg Donor's Rights".
The Co-Parent Adoption process has been used by same-sex parents throughout Massachusetts to establish a legal and binding parent-child relationship in a non-biological parent. Even married couples who are both listed as presumptive parents on a birth certificate in Massachusetts should file for adoption to ensure that their legal parentage will be recognized in states that are hostile to same-sex relationships.
To determine whether a Co-Parent Adoption is right for you and your family, download our our free informational brochure, and contact one of the reproductive law attorneys at Vaughn-Martel Law. We're always happy to answer any questions you might have.
Tuesday, September 20, 2011
The "New" Massachusetts Standard Birth Certificate
Historically, Massachusetts birth certificate forms have varied among individual cities and towns. Many variations of the birth certificates listed the child’s parents as “Mother” and “Father”, posing a hurdle for gay and lesbian parents and confusion on the part of the hospitals, lawyers, and courts who work with birth certificates regularly. Throughout the past two decades, gay and lesbian parents would find the traditional “mother” and “father” titles crossed out on their child’s birth certificate, being replaced with “co-parent” or “second parent” to more accurately reflect their family situation.
With changes officially going into effect in March of this year, Massachusetts has now standardized birth certificates with two boxes labeled “mother/parent” and “father/parent”. This standardization serves to recognize the existence of gay and lesbian families and demonstrates a greater sensitivity to alternative reproduction and family creation. Additionally, it helps to incorporate gay and lesbian families into the everyday framework of hospitals all around the state who are working more and more with different types of families and with various models of family creation.
As reported by Stephen Smith of the Boston Globe:
Massachusetts law has recognized gay and lesbian parents for nearly two decades, said Kara Suffredini, executive director of MassEquality, a gay rights organization. “And yet they’ve continued to suffer the indignity of having their family formation be invisible on a fundamental form like a birth certificate. It’s about time that comes to an end.’’
Until now, Massachusetts, with its fiercely protected tradition of local rule, has had a patchwork of birth certificate forms. Each city or town could have its own. Some were kept electronically, some on paper. The state estimates that as many as 700 variations on the birth certificate existed in the state’s 351 cities and towns.
The standardization of birth certificates in Massachusetts is a step forward for gay and lesbian parents, and will hopefully end the oftentimes uncomfortable and confusing process of altering the birth certificate unnecessary.
Keep checking VAUGHN-MARTEL LAW’S Legal Blog for the most recent legal news surrounding same-sex families and alternative reproduction advances in the law.