She is the genetic mother and ex-partner of the birth mom, but what she is not is an egg donor notwithstanding how the media spins this case:
The woman has little more than memories of the little girl she calls her daughter. In a blue accordion file are the remnants of her life with the now 7-year-old girl: birthday cards, a photograph of the toddler with cake-mix on her face and a Mother’s Day poster of her handprints. Then, there are the court orders and petitions.
It’s been three years since the West Melbourne woman last saw the little girl, amid a custody battle that tests Florida’s legal system when it comes to gay couples and their parenting rights. The child was born in 2004. The woman donated the egg, the sperm came from an anonymous donor and her then girlfriend carried the embryo before giving birth. Two years later, the couple split. They shared custody for a while, but eventually all of the egg donor’s contact with the girl stopped. Christmas cards mailed to her came back unopened. In 2008, she filed a lawsuit seeking rights as a legal parent.
Florida Today is not identifying either of the two women to protect the identity of the child. In 2009, Brevard Circuit Judge Charlie Crawford threw out the case and said in a written order that the egg donor did not have any legal rights to the girl. He acknowledged, however, that the law had not caught up with science or the concept of same-sex marriages or parentage. The egg donor appealed the decision.
Now, seven months after both sides made presentations to the 5th District Court of Appeal in Daytona Beach, they’re waiting for the court to rule. “I’ve never quite come across anything exactly like this before,” David Monaco, chief judge for the appeal court, said during the oral arguments. There is little precedent in Florida law to fall back on, said Robert Segal, the attorney representing the egg donor. “When Florida’s laws were written, the Legislature never contemplated a case like this,” he said.
Neither did the medical community that helped the couple conceive. Before she donated her egg, the woman signed a form at the doctor’s office giving up her rights to the egg and the baby. It was a standard document used for all such procedures, according to a court affidavit from Dr. Diran Chamoun. The egg donor, who is now 40, was not merely going to be a donor of genetic material, she was going to be a parent, too, the affidavit says.
Patients at the Melbourne doctor’s office still sign a consent form that has been updated over the years. But in addition, they are asked to have a lawyer involved to sign a contract between the various parties. The name of the woman who donated the egg was not on the birth certificate because Florida law only allows information on the birth mother and father. The girl’s birth mother did not respond to phone calls, e-mails and letters from Florida Today. Her lawyer, Michael Jones, also did not respond.
Lawmakers have been hesitant to step into the fray and offer legal guidelines for cases like this. “It gets into all kinds of issues — the status of an embryo, gay parenting and reproductive rights,” said Dr. Arthur Caplan, director at the Center for Bioethics at the University of Pennsylvania. “And it makes them uncomfortable because it is too close to the abortion issue. It is also part of the battle over gay marriage.”
The first test-tube baby was born in the United States nearly 30 years ago. But there are few specific laws anywhere in the country when it comes to children born from in-vitro procedures, Caplan said. Mostly, it is up to the state courts. “It is in the best interest of the child that governs what happens in these cases as it should be — not claims by egg donors, etc.,” he said. In this complicated case, however, that isn’t the question before the court right now.
The issue is more basic: Does the woman who gave the egg have any legal connection to the child under Florida law?
The egg donor’s parents frowned on her relationship with another woman. They mailed her religious newsletters from their home in Indiana. “They pretty much disowned me,” she said. “They thought I was possessed by the devil.” But her three sisters stood by her.
By the time the couple were deciding to have a baby, her parents warmed to her again. In-vitro fertilization using her eggs turned out to be the best option for the couple to become parents, she said. Initially, her parents did not know the baby was conceived with their daughter’s egg. They found out when they came to Brevard County for the baptism, and they were ecstatic. A Mother’s Day poster from 2007 with the girl’s handprints is one of the woman’s treasured possessions. “As for these two handprints, Someday you’ll be glad, We took some time to make a mess, That didn’t make you mad,” it reads. Near the end of that year, the birth mother moved away with the little girl, the egg donor said.
Seeking help, she thumbed through the phone book and called one lawyer after another. “I don’t know what to do with it,” said one. “We do not take cases like that,” said another. Somewhere at the end of the listings, she found Segal, who expressed interest right away.
The lawsuit was filed in April 2008. A private eye hired by the egg donor tracked the baby and the birth mother to Queensland, Australia, where she was served with the lawsuit. The birth mother and the girl now are back living in Brevard. Jones, who is the birth mother’s lawyer, has said in court documents that Florida law is not favorable to any claim arising from a same-sex relationship. At the appeal court, he said the donation of genetic material does not create a legal parent. “She’s (the birth mother) got the constitutionally protected rights, she has the statutorily protected rights,” he said.
In a comparable case from 2006, a Florida appeal court upheld the decision of a lower court and denied parental rights to a woman who had been in a same-sex relationship where two children were born to her partner with the help of a sperm donor. The case, called Wakeman v. Dixon, was cited by Jones in his arguments. A judge who heard the arguments in the case said the law did not have a remedy. I write to urge the Florida Legislature to address the needs of the children born into or raised in these non-traditional households when a break-up occurs,” he said.
In Michigan, an appeals court last year reversed a decision involving Renee Harmon and Tammy Davis, a same-sex couple who lived together for 19 years, where Davis had three children through artificial insemination. A circuit judge said Harmon had the ability to pursue joint custody, according to the Detroit Free Press. But that opinion was reversed by a higher court. Michigan, like Florida, does not recognize gay marriage. Harmon’s attorney, Dana Nessel, said they have appealed to the Michigan Supreme Court.
There is a need for preventive ethics, to anticipate and analyze issues in advance to prevent disputes later, said Kenneth Goodman, bioethics program director at the University of Miami. “We have to make sure we talk about the ethical issues before we start wielding the test tube,” he said. “In the absence of guidelines, we are going to get kooky cases.” People going into these situations should have their eyes wide open, said Goodman, especially in a state like Florida that does not recognize gay marriage or unions.
“I was naive. Knowing what I know now, I would not have done what I did,” said the egg donor. “One day, when she is all grown up and tries to find out more, I want to show her all this,” she said, caressing the cards marked, “Return to sender.” Someday, I hope, she will realize that it was not me. I was not allowed to contact her.”
We need to be very clear here. The woman whose eggs were used did not donate them. She and her partner, who were in a committed relationship, made an intentional decision to create a baby and to co-parent the child. By definition, a person who donates is making a gift. This was not a gift any more than when a married, heterosexual man provides a sperm specimen so that he and his wife can have a child via in vitro fertilization. Did the husband in this hypothetical donate his sperm? No, of course not. So why are we treating the egg provider differently? Because she was in a lesbian relationship? Because Florida does not recognize gay marriage? Or does this story only become interesting if we mischaracterize the gamete provider as an egg donor?
This type of imbroglio takes place in courtrooms across the country every day as parents wage bitter custody disputes for their children. No one ever calls the father of a child in a custody dispute a sperm donor. And no one should be calling this woman anything other than a mother of this child. So while Florida might not have any laws to resolve a dispute that pits a birth mother against a genetic mother, they do have child custody laws that focus on the best interests of the child. Judges around the world make these Solomonic decisions on a daily basis and little attention is paid by the media. Portraying this case as anything other than a custody dispute does a terrible disservice to the infertility and journalism communities. Even worse, it sends a fallacious message that will only cause recipients of donor gametes to worry unnecessarily that their “donor” might possess some inherent legal rights that can be asserted years later to obtain custody of their child.