Who’s Mum?

18 Jan
Florida has been the source of contention in the past few weeks thanks to an unprecedented case. It seems that American law regarding the custody of children will have to be re-written, and new attitudes adopted in a great many courtrooms.This over-due change is thanks to a lesbian couple who are in disagreement over their daughter’s custody. The unnamed couple were in a committed relationship for eleven years before seeking counselling and medical advice in preparation for adding a child to their family dynamic.

However, upon discovering that the 39-year-old woman was infertile, her 34-year-old partner donated one of her own eggs, to be implanted into the 39-year-old who then carried the baby to term. For ease of reading, let’s refer to the 39-year-old as the Child-Bearer and the 34 year old as the Egg-Donor. The father was an anonymous donor who waived all rights to the child.

Their child bears both women’s names, though the birth certificate named only the Bearer as the mother. This, then, is the source of all their problems. The couple raised the child in a joint effort until their daughter was two; upon splitting, the Child-Bearer moved to Australia with the child, and the Egg-Donor remained in America. In a bid to gain custody, the Egg-Donor found her former partner in Queensland and both have returned to America for the duration of the custody battle.

However, according to the current legal system, the woman who bore the child is the child’s mother. There is no other case where the woman bearing the child had an egg donated to her by her partner. There are no guidelines; there are no previous rulings. The Child-Bearer claims that she is the mother, due to the fact that she gave birth to the child. The Egg-Donor claims that she is the true mother as she is the girl’s biological parent.

No clear mention has been made as to whether the two women are suing for sole custody. To me, it would make complete sense to treat this as any other divorce between a heterosexual couple who have had children together. While yes, one woman carried the child for nine months and gave birth to her, the other woman gave a part of herself to make this possible. The man does not carry the child for nine months, but he is just as responsible for the child’s creation. How does this differ? They are both parents. They are both mothers in their own rights. The only thing throwing perception is that both parties are women.

Surely, in this situation, due regard should be given to whoever can provide for the child in a more complete fashion. Is the child better cared for by the Child-Bearer? Would the Egg-Donor be in a better position to provide for her? How has the move to Australia changed the situation between the two – would there be arrangements for the child to visit both her Antipodean and her American family? These questions seem to be more pressing than identifying who is the ‘real’ mother; surely the debate centres on intention and the ability to provide for the child? Without a doubt, the question of who deserves the title of ‘true’ motherhood is exceptionally important, though I think a little bit of focus has been lost on some of the large issues here thanks to the unusual circumstance providing a great deal of excitement. Personally, I feel that those viewing this as a purely cerebral argument are conveniently forgetting that this is a real family that’s being discussed.

On Dec. 23, 2011 a Daytona County judge ruled that the Child-Bearer was in fact the ‘true’ mother, as the law states that the person who gave birth to the child is the child’s mother. There was no allowance for the Egg-Donor in the place of her child’s creation. He stated that it ‘broke his heart’ to rule this, but that the law provided no other alternative. I count this rubbish. So did the lawyers in D.C. In the 5th District Court of Appeal, the courts later gave both women custody to the child, stating that Florida law was ‘outdated and violated the Constitution’.

I think it is incredibly important for the law -and those who enforce and represent it- to keep up with the changing technology in reproductive medicine and the evolution of modern-day family structure. Things are not so black and white anymore; as society grows, we find ourselves with new situations. We need our laws to reflect and protect what we hold dear as a society. Whatever shape our families or our relationships take, we need the flexibility shown in everyday social regards to be reflected in our law practitioners’ attitudes, the laws and their interpretation. Thank goodness this case proved a catalyst to make the necessary changes to outdated systems.  A family is not a simple construct, and as such, it should not be restricted by simple ideas.

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