Biological vs. Birth Mother: On The Cutting Edge Of The Law

A Florida appellate court recently decided a case involving the parenting claims of two women for the same child. The women were same-sex domestic partners who decided to have a child together. One of the women contributed her egg for the other to become pregnant. At birth, the child was given a last name that was a hyphenated combination of the last names of the two women. The two demonstrated in many additional ways their intention that each of them be a parent to the child. Even after the couple broke up, they shared custody of the child on an equal basis. However, the relationship of the women continued to deteriorate and the birth mother took the child and moved to Australia. The biological mother filed a lawsuit in Florida asking the court to grant her timesharing rights with the child. The trial court determined that the biological mother had no parental rights as a result of Florida's donor statute, Florida Statutes, Section 742.14. This statute provides that someone who donates sperm or an egg relinquishes their parental rights. In making its decision the trial judge described the actions of the birth mother as "morally reprehensible" and said that he hoped he would be overruled by the appellate court.

The decision by the appellate court was a three-part decision. The judge who wrote the majority opinion focused on how the biological mother's contribution of the egg wasn't really a donation as described in the donor statute. The judge who wrote the dissenting opinion focused on how it was a donation covered by the statute. The concurring opinion was the most interesting. Instead of focusing on what the law did or did not provide, the judge who wrote the concurring opinion talked about what the law should provide. The concurring judge suggested that maybe the law should place more emphasis on the best interest of the child in such cases.

Of course, the rule of law is the foundation for civilization. It is essential that courts apply the existing law in making their decisions. Still, the application of existing law to new circumstances can sometimes yield results not contemplated or intended by the lawmakers. Certainly, or at least hopefully, the Florida legislature did not intend to deprive a three-year-old child of its mother even if the child has two mothers. Although this case is being reviewed by the appellate court, at least for now the child has continuing contact with both mothers.