The "progeny" of Florida's reproductive technology statutes.

AuthorBendeck, Odette Marie

A series of statutes self-styled as addressing "reproductive technology" became law without the governor's approval on May 15, 1993. (1) F.S. [section][section]742.13, 742.14, 742.15, 742.16, and 742.17 took effect on June 30, 1993. These statutes addressed a variety of issues, including gestational surrogacy contracts and inheritance rights for children conceived from eggs or sperm of an individual who died before the transfer of genetic material to a woman's body was complete. However, the only topic to have generated any appellate activity centers on parental rights and responsibilities of egg and sperm donors.

At the center of this controversy is the initial sentence of a two-sentence statute--namely F.S. [section]742.14--which reads in its entirety as follows:

742.14. Donation of eggs, sperm, or preembryos

The donor of any egg, sperm, or preembryo, other than the commissioning couple or a father who has executed a preplanned adoption agreement under s. 63.212, shall relinquish all maternal or paternal rights and obligations with respect to the donation or the resulting children. Only reasonable compensation directly related to the donation of eggs, sperm, and preembryos shall be permitted. (2)

At a glance, the statute simply establishes that sperm and egg donors have no legal relationship to a resulting child. In the absence of a legal relationship, the sperm or egg donor has no child support obligation and no timesharing rights. This concept is simple and uncontroversial in the context of strangers providing genetic material to strangers with no expectation of having a joint presence in the resulting child's life.

While the legislature may have intended that this "simple" statute decrease or foreclose litigation about the consequences of egg or sperm donation, it has become the focus of heated disputes between same-sex couples with children and between single biological mothers and the men who agree to help them become pregnant.

Exceptions to F.S. [section]742.14

The statute creates two exceptions to the rule that there is no legal relationship between the donor and child: donations from a "commissioning couple" and donations covered by a preplanned adoption agreement. There are no reported cases construing the portion of the statute concerning preplanned adoption agreements. Instead, the controversies have centered on the exception to the no-legal-relationship rule for a "commissioning couple" and, strangely enough, on precisely how conception took place.

F.S. [section]742.13 sets forth definitional terms as follows:

As used in ss. 742.11-742.17, the term:

(1) "Assisted reproductive technology" means those procreative procedures which involve the laboratory handling of human eggs or preembryos, including, but not limited to, in vitro fertilization embryo transfer, gamete intra fallopian transfer, pronuclear stage transfer, tubal embryo transfer, and zygote intrafallopian transfer.

(2) "Commissioning couple" means the intended mother and father of a child who will be conceived by means of assisted reproductive technology using the eggs or sperm of at least one of the intended parents. (3)

In the decades since these statutes became law, the trial and appellate courts have been called upon to decide cases between formerly intact nontraditional families, some of whom went to great lengths to protect the relationships between the parents and children involved. On the other end of that spectrum are the cases wherein the parties went to great lengths to prevent any suggestion of a parental connection.

The opinions reflect a tremendous struggle to align contract terms with statutory construction and the perceived best interests of the children involved. The decisions also demonstrate the frustration of the clear intent of contracts, whether entered into by same-sex couples desiring to co-parent children and to keep their families intact should they cease residing together, or entered into by parties attempting to prevent the creation of familial rights and obligations.

Wakeman v. Dixon

A classic example of this struggle is found in Wakeman v. Dixon, 921 So. 2d 669 (Fla. 1st DCA 2006), rev. den., 931 So. 2d 902 (Fla. 2006). Although this case did not squarely address the reproductive technology statutes, it serves as a backdrop to later cases that confront similar issues under the statutory framework. The facts are outlined in detail below in order to demonstrate the impact of the ruling.

A lesbian couple, Wakeman and Dixon, decided to have children after having lived together for several years. They both signed a sperm donation agreement, as did the sperm donor, wherein both women were described as the "recipient," "mother," and "co-parent" in that agreement, and the sperm donor relinquished parental rights in the agreement. The contract specified that in the event of the death or disability of a mother of any children born through artificial insemination, the best interests of any children would be served by having the children remain with the co-parent. They designated each other as the co-parent for any child born to either of them and expressly stated that it was contemplated that any children would reside with them as mother and co-parent. The contract stated that both parties were contemplated to become "psychological parents" to any of their children. (4)

After Dixon gave birth to a child, the parties executed a series of additional documents which:

* Acknowledged that the decision to conceive was a joint decision based on a commitment to jointly parent the child;

* Provided that Wakeman would contribute to the financial support of the child;

* Stated that both parties committed to equally share in providing the child with necessary support until majority;

* Recognized Wakeman as a de facto parent who had participated in all prenatal care;

* Agreed that Wakeman's relationship would be protected and promoted;

* Specified that, in the event the parties no longer resided together, the parties would continue to provide for the child in the manner described in the agreement; that each would continue to facilitate a close relationship with the other; and that they would continue to raise the child jointly;

* Named Wakeman as the guardian for the child;

* Granted Wakeman the authority to make health care decisions for the child; and

* Named Wakeman as Dixon's attorney-in-fact to manage the affairs relating to the child and to serve as health care surrogate for the child. (5)

After Dixon gave birth to a second child, identical documents were drafted with regard to this child. Thereafter, both women executed an affidavit of domestic partnership which allowed Dixon and the two children to receive coverage under Wakeman's health insurance. (6)

Despite all of the expressions of intent and the contractual precautions that were taken by Dixon and Wakeman, litigation ensued when the parties ceased living together and Dixon relocated with the two children to another city. Wakeman filed suit seeking relief under a variety of legal theories, including declaratory relief of her parental rights. Dixon responded with a motion to dismiss, arguing that Wakeman had no enforceable legal rights to the children.

The trial court granted the motion to dismiss finding that, while a compelling argument had been made that it was in the best interest of the children to enforce the co-parenting agreements, the court lacked statutory or case law precedent to compel visitation between a child and a person who is not a parent. On appeal, Wakeman argued that the contracts conferred upon her the status of a parent, and, therefore, she was entitled to protection as a parent under F.S. Ch. 61. The First District affirmed the trial court holding:

We agree with the trial court that, under Florida law, absent evidence of detriment to the child, courts have no authority to grant custody or to compel visitation by a person who is not a natural parent and that agreements providing for visitation by a non-parent are unenforceable. (7)

The decision relies on the many cases establishing that a parent's fundamental rights to a child precluded even grandparental visitation. (8) The opinion also indicates that its holding is controlled by its prior decision in Music v. Rachford, 654 So. 2d 1234 (Fla. 1st DCA 1995), in which it held that Ch. 61 does not allow nonparents to seek custody or visitation. (9) The appellate court rejected the argument that the agreements granted Wakeman the status of a parent, again emphasizing that a court has no inherent authority to award...

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