As Florida courts enter opinions invalidating statutes that prohibit the solemnization and recognition of same sex marriages, same sex couples must grapple with other state laws, which define marriage as the union of a husband and wife. For example, the Florida legislature has enacted statutes, which determine the paternity of a child conceived via assisted reproductive technology (e.g., with donated eggs or male genetic material) and born to the wife during a marriage. Florida also has statutes, which establish the maternity and paternity of a child born to a gestational surrogate during a marriage. In states like Florida, which until recently, neither permitted same sex marriages nor recognized same sex marriages performed in other sovereign states, these statutes do not address the parenthood of a same sex spouse who is not biologically related to the child.
In in re Maxwell, Lisa and Christine Maxwell, who were married in New York City, brought a Petition to Determine Parenthood to establish Lisa’s parental relationship to their daughter, whom Christine conceived with donated male genetic material during their marriage. By recognizing the parenthood of Lisa Maxwell, a Palm Beach County Circuit Court judge provided guidance for same sex couples in Florida and other states, who desire to establish the legality of their marriages and parental statuses without adopting their own children.
Like the statutes governing parental relationships to children conceived during marriage through assisted reproductive means, Florida statutes governing testacy and intestacy, divorce, child support, parenthood, alimony and real estate ownership do not yet recognize that, in Florida, a marriage now can be the union of a husband and wife, two wives or two husbands. As a result, same sex couples are asking Florida courts to recognize their rights and responsibilities as married persons.