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The 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 child support. 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 technology.