Yesterday, the Florida Supreme Court issued a very positive ruling protecting the parental rights of two lesbian parents, one who is the birth parent and one who is the biological parent. The Court concluded that parental rights are based on an individual taking on parental responsibilities for a child, not solely upon whether a person shares a biological relationship with the child.
In this case, a lesbian couple had a baby through assisted reproduction, with one woman carrying the egg of her partner, making one woman the biological mother and the other the birth mother. Several years after the child was born, the relationship between the two women ended and the birth mother asserted that her former partner should not be treated as a parent to the child, but only as an egg donor. Under Florida law, this would mean that her partner had no parental rights to the child.
The case hinged on a Florida statute that protected couples using assisted reproductive technology from egg and sperm donors suing to be recognized as parents. The statute in question ensured that donors would have no parental rights to a child but for two exceptions. While under the language of the statute, the partner technically met the definition of a “donor” and not a parent, these exceptions did not apply to this couple because the statute’s drafters had written the law specifically with male and female partners in mind.
While agreeing that the language of the statute would technically treat the partner as a donor, the Court found that this language unconstitutionally violated the partner’s fundamental right to be a parent. Since Florida does not allow a person to adopt her same-sex partner’s child, to also automatically deem that partner a donor with no parental rights would mean there is no route for a same-sex partner to form a legal bond with her child. The Court concluded that the partner did not waive her rights as a parent when donating her egg based on her intent to raise the child as well as the many ways she assumed responsibility in caring for the child. Because she acted like a parent and had a biological link to the child, the law could not treat her as only a donor.
Significantly, the Court only struck down the law’s language where it applied to a donor in a same-sex relationship who intends to be a parent to the child. The statute still protects the rights of potential parents from an egg or sperm donor who was not intended to be a parent to the child. This ruling should not put same-sex couples who use a donor to conceive a child at risk of that donor seeking to be recognized as a legal parent of the couple’s child.