New Florida case regarding same sex sperm donation showing importance of step/second parent adoptions

On June 12, 2020, the 5th District Court of Appeal of the State of Florida issued an opinion in Case Number 5D19-1525, Shealyn McGovern v. Jacqulyn Clark, regarding a dispute between a same sex couple having children together with the use of a sperm donor, and what happened to the parental rights of the couple when they split up.

The McGovern decision interpreted Florida Statute Section 742.091 to extend the term reputed father to lesbians that sought a pregnancy through sperm donation.  Essentially, a lesbian couple got together to raise a family.  They had 2 children (as a couple) before getting married. After they got married, they had two more. The children all had the same last name (McGovern) which was the non-birth mother’s last name.  The birth certificate listed the birth mother as the mother and not the other parent. There was no birth father listed.

Following the birth of the children, the couple broke up.  McGovern sought dissolution of marriage and to establish a custody agreement for all four children.  Clark fought back by saying that McGovern had norights to any of the children because she was not the birth mother and could not be the father.

The Court essentially split the children between McGovern and Clark. It ruled that the two kids born during marriage were McGovern’s kids but not the children that were born out of wedlock. The 5th DCA held that McGovern was the reputed father for the kids sought through essentially a sperm donor.  The court stated that a biological connection is not required to prove a reputed  parent. A reputed parent is a concept under Florida law which allowed an unwed father to seek to legitimize a child born out of wedlock by later marrying the child's mother to establish parentage as a matter of law pursuant to Section 742.091, Florida Statutes. Clark claimed that the reputed father statute did not apply to McGovern because McGovern was not biologically related to the children like a genetic father would be related.

Had the parties performed the appropriate adoption proceeding following the birth of the children, the parental rights would have been protected for McGovern. The court in fact stated that had the parties performed an adoption, there would be no question as to parental rights.

Florida surrogacy attorney, Marla Neufeld, was quoted in the University of Florida's independent newspaper, the Alligator, in the article titled, What it’s like for a same-sex couple to have a baby through assisted reproductive technology, on the topic of same sex family building and step parent adoptions.