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.

 

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Photo of Michelle O'Neil Michelle O'Neil

Michelle May O’Neil has 30+ years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes…

Michelle May O’Neil has 30+ years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes genuine compassion for her client’s difficulties, yet she can be relentless when in pursuit of a client’s goals. One judge said of Ms. O’Neil, “She cannot be out-gunned, out-briefed, or out-lawyered!”

Family Law Specialist

Ms. O’Neil became a board-certified family law specialist by the Texas Board of Legal Specialization in 1997 and has maintained her certification since that time. While representing clients in litigation before the trial court is an important part of her practice, Ms. O’Neil also handles appellate matters in the trial court, courts of appeals and Texas Supreme Court. Lawyers frequently consult with Ms. O’Neil on their litigation cases about specialized legal issues requiring particularized attention both at the trial court and appellate levels. This gives her a unique perspective and depth of perception that benefits both her litigation and appellate clients.

Top Lawyers in Texas and America

Ms. O’Neil has been named to the list of Texas SuperLawyers for many years, a peer-voted honor given to only about 5% of the lawyers in the state of Texas. Ms. O’Neil received the special honor of being named by Texas SuperLawyers as one of the Top 50 Women Lawyers in Texas, Top 100 Lawyers in Texas, and Top 100 Lawyers in DFW for multiple years. She was named one of the Best Lawyers in America and received an “A-V” peer review rating by Martindale-Hubbell Legal Directories for the highest quality legal ability and ethical standards.

Author and Speaker

A noted author, Ms. O’Neil released her second book Basics of Texas Divorce Law in November 2010, with a second edition released in 2013, and a third edition expected in 2015.  Her first book, All About Texas Law and Kids, was published in September 2009 by Texas Lawyer Press. In 2012, Ms. O’Neil co-authored the booklets What You Need To Know About Common Law Marriage In Texas and Social Study Evaluations.  The State Bar of Texas and other providers of continuing education for attorneys frequently enlist Ms. O’Neil to provide instruction to attorneys on topics of her expertise in the family law arena.