Advances in reproductive technology, including in vitro fertilization and
surrogates, have led to changes and modifications in
family law cases. For instance, before such technology, the birth mother of a child
was presumed to be the mother and to have all legal rights to the child
regardless of her marital state. The biological father, however, if not
married to the birth mother, must establish his parental rights by filing a
paternity action. Such assumptions, however, did not contemplate the possibility
of a birth mother not being the biological mother which now, due to in
vitro fertilization and surrogate mothers, is possible. In a recent Florida
Fifth District Court of Appeal case, T.M.H. v. D.M.T., (Fla. 5th DCA December
23, 2011) this was an issue.
In that case, the parties were a lesbian couple, one of which was sterile.
The fertile partner had an ova removed, fertilized by donor sperm, and
then implanted in the sterile partner with the intention that the partners
would raise the child together. The birth mother, therefore, was not the
biological mother of the child. The parties then proceeded to live together
and raise the child as a couple for several years. At some point the relationship
deteriorated and the parties separated. To begin with, the parties shared
custody with the biological mother having visitation and paying
Unfortunately, the parties reached a point where they could no longer communicate
and the birth mother fled the country with the child. The biological mother
filed what essential was a maternity case, requesting
parental rights, return of the child, etc. The trial court denied all the biological mother's
claims and granted a motion for summary judgment by the birth mother,
indicating that under the law the birth mother is presumed to have full
legal rights to the child and that in this case the biological mother
had signed a waiver when she donated her ova to be implanted in the birth mother.
The Appellate Court overturned the Trial Court's ruling, finding that
the biological mother, while she signed the waiver, did so with the intent
that the parties would raise the child together, which they did for the
first few years. The Appellate Court found that both parties have parental
rights with regard to the minor child and remanded the case to the trial
court for determination of issues including
time-sharing and child support. The new technologies may give rise to similar cases,
especially when the birth mother is not the biological mother of the child.
When there is a surrogate mother, does the surrogate, who is not biologically
related to the child, then have rights to the child? These are just some
of the issues which the Courts may face with the advances in reproductive
Contact Owenby Law, P.A. to speak with a Jacksonville family law attorney.