Florida’s attorney general has intervened in a surrogacy case where he likened contractual surrogacy to slavery—and proposed arguments that could end surrogacy, donor conception, and adoption in the state, while threatening the legal stability of existing families created through those methods.
Uthmeier’s Intervention
The road to this situation began when a married, two-man couple from France contracted with a surrogate in the state, and last August sought a pre-birth order to confirm their parental rights, reported the Miami Herald. Judge Marlon Weiss granted the order, since contractual surrogacy is legal under current state law, but used the occasion to opine that if unborn children are entitled to personhood (which he believes they are), “those children cannot be subject to an ownership contract,” explained the Herald. After the baby’s birth in November, Florida Attorney General James Uthmeier sought to intervene in the case and declare the men’s surrogacy contract invalid.
While Uthmeier’s filings are still confidential and unavailable to the public, Katie Jay, a lawyer for the two men, has seen them. She spoke with Slate, where she explained that Uthmeier wrote that surrogacy contracts “treat children as property” and are thus unconstitutional under the 13th Amendment, which outlawed slavery.
As Jon Harris Maurer, general counsel and public policy director of Equality Florida, said in a statement, though, “Equating consensual, legally regulated surrogacy with human trafficking is outrageous and wildly offensive.”
Yes. Exactly. And as Equality Florida explained, “Surrogacy law is already highly developed and protects all those involved. Lawful surrogacy arrangements already include extensive legal and ethical safeguards, including informed consent, independent legal counsel, medical screening, mental health evaluations, enforceable agreements, and court oversight.”
There’s more, though. Jay also spoke with the Herald, explaining that (as the paper paraphrases) Uthmeier isn’t questioning the men’s ability to parent, but rather arguing more broadly “that the government has a duty to protect children who didn’t have a say in not being raised by both biological parents.” Additionally, as Jay related to Slate, Uthmeier wrote that he believes the Florida Constitution bans biological parents, including egg and sperm donors, from transferring their parental rights to another party.
The Implications
Uthmeier’s theories, if upheld by the courts, would effectively end surrogacy and donor conception in the state. They would also endanger legal ties between parents and children in existing families formed via surrogacy and donor conception.
The ramifications go even further. Since adoption similarly involves a genetic parent transferring parental rights to another person, Uthmeier’s arguments could also end adoption in the state. And as Mark Joseph Stern of Slate noted, Uthmeier’s position also fractures the longstanding legal principle of the marital presumption of parentage. That principle, held by all states, says that any child born to one person in a marriage is presumed to be the legal child of the other person as well (though this has at times been unequally applied to same-sex couples, as in this Oklahoma case, among other examples). Because Uthmeier says that only biological parents have parental rights, however, that principle would become unconstitutional, as Stern explained, “because it allows a non-biological father to assert parentage while severing the biological father’s claim to the child.” (I.e., if the husband was not the biological father.)
I refer you to Stern’s piece if you want more of the legal nitty-gritty; he’s a lawyer as well as a journalist. Equality Florida’s Maurer summed up the impact, though, saying:
Politicians have no business intruding because parents turn to surrogacy and IVF to start the family they’ve desperately dreamed of. What could be more hypocritical of parents’ rights? This is part of a broader and deeply dangerous effort to dictate who gets to build a family, whose families are recognized under the law, and who deserves the freedom to parent their children.
Every child deserves security and stability. Children should not lose the protection of legally recognized parents because politicians are pursuing ideological attacks on modern families. Families, no matter how they are formed, deserve equal dignity and protection under the law. No family should be treated like a second-class family because they relied on surrogacy, IVF, or adoption to have children.
While Uthmeier’s arguments threaten families of all types where one or more parents is not genetically connected to their children, children with LGBTQ parents are particularly at risk. As Equality Florida noted, “While these attacks threaten all Floridians, they are especially concerning for the LGBTQ community, which frequently faces fewer options for family formation.” I’ll add that parentage rights for LGBTQ parents have long been attacked (sometimes successfully, sometimes not) using even flimsier legal arguments; it’s no big leap to say that they would be a target again here.
What’s Next
The Herald reports that “A case is now pending in front of the Fourth District Court of Appeals. The child has been with the fathers since birth and is not likely to be removed from their care.” Nevertheless, the impact that Uthmeier’s intervention will have remains an open question. Equality Florida does note that “Attorney General Uthmeier’s lawsuit resembles failed legislative efforts to drastically restrict surrogacy and IVF,” which feels hopeful if we emphasize “failed”—but also indicates worrisome ongoing attacks. No matter what happens in this particular case, it is a reminder that we have to keep fighting for the right to form our families in the ways we choose.
The case also raises concerns even before we get to the merits (or lack thereof) of the arguments. As the Miami Herald explained, Florida law says that surrogacy cases are confidential. When Weiss published his order, however, “he wrote that his ruling was not confidential because it didn’t share identifying information about the child or parents.” He later submitted it as part of his application to be on an appeals court; then the order was published in a law trade journal. The paper noted, “It’s not clear how Uthmeier’s office heard about the case.” Seems like there are a few questions to be answered there.
What You Can Do
I am not a lawyer myself, but suggest that if you are an LGBTQ parent or prospective parent in Florida, or if you have a surrogate or donor there, that you speak with an attorney well versed in LGBTQ family law to make sure your parentage is as secure as you can make it. See “LGBTQ Paths to Parentage Security,” from GLAD Law and me for a brief overview of why this is important, even if you are married and on your child’s birth certificate.
Equality Florida has also pledged to continue working with other advocates and impacted families “to oppose attempts to restrict access to IVF, surrogacy, and reproductive healthcare in Florida.” Follow them for the latest news and action alerts about how you can support their efforts.