Egg donor mom and birth mom both given parental rights.

So, the question is what happens when two women are in a relationship, woman #1 donates her egg to woman #2 and woman #2 gives birth to the baby? Which one is the “mother”?

Under Texas divorce law, the answer is that woman #2, as the birth mother, is the legal parent and woman #1, as a donor under the law, has no parental rights.

But, a Florida state court of appeals has ruled differently in a case out of Daytona, Florida. The court of appeals held that state law has not kept up with the times, giving the egg-donor woman should have parental rights too. The court pointed to the factors in the relationship to make its decision. The couple had been in a committed relationship for 11-years. The two women decided together to have a child and went to counseling to prepare for it. They discovered that woman #2 was infertile. They went together to a fertility specialist and woman #1 became a donor. The fertilized egg was implanted in woman #2’s womb and the baby girl was born. The couple gave the child a hyphenated version of their last names, although the birth certificate bore only the name of the mom who carried the baby to term. The child treated both women as parents even after they split up. All of these factors together influenced the Florida court to decide to give the woman #1 parental rights. The appeals court sent the case back to the trial court to establish custody, visitation and child support rights, focusing on the child’s best interest.

Unfortunately, this result would be very different, at least in the opinion of this Dallas divorce attorney. Texas has specific laws that protect the parental rights in a donor situation and which specifically decline to find parental rights in the donor woman. The best choice for lesbian or gay parents in Texas is for the non-biological-parent partner to adopt the child in order to have legal status as a parent.

See the article in the Orlando Sentinel here: Both lesbian moms have parental rights, Daytona court rules in custody dispute.