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In one of the more shocking underreported stories from recent months, Florida Attorney General James Uthmeier is attempting to strip legal parentage from families who conceive children using a genetic donor, launching an attack on one same-sex couple that has sweeping ramifications for thousands more—including heterosexual and adoptive parents. The Miami Herald reported last week that Uthmeier, a Republican appointee of Gov. Ron DeSantis, intervened in a routine case to argue that Florida’s surrogacy contract language violates the 13th Amendment’s prohibition on slavery, and, more sweepingly, that the state constitution bars biological parents from transferring parental rights at all. These theories—which one far-right judge has already endorsed—would end both surrogacy and donor conception in Florida, while imperiling parents’ ability to adopt out their birth children. They would render some parents legal strangers to the children they are already raising, potentially leaving those kids without recognized parents at all.
Uthmeier says he is doing all this to protect children from what he calls “modern-day slavery.” But the consequence would be a massive disruption of stable, loving families, as countless parents are told that they have no legal claim as parents to their own kids.
The attorney general’s crusade against Florida’s donor-conceived and adoptive families has an unusual genesis. It began when two married men from France asked Judge Marlon Weiss to issue a pre-birth order acknowledging them as the lawful parents of a child who was about to be born via surrogacy. (In this arrangement, the parents conceive with one father’s genetic material and an egg donor; the gestational carrier has no biological relationship to the child.) Florida has allowed for surrogacy since 1993, and couples typically have no problem obtaining the order establishing their rights as parents. Judge Weiss, a DeSantis appointee, begrudgingly granted the pre-birth order, as required by law. But alongside it, he issued an opinion speculating that the surrogacy contract may be unconstitutional and void. Establishing parentage through a contract, he wrote, may violate the rights of “unborn children”—who, he mused, might be entitled to legal personhood.
Weiss appears to have penned this opinion to get DeSantis’ attention for a promotion: He later included it in an application packet seeking elevation to a state appellate court. (The governor did not pick him for the seat.) But Uthmeier seized the opportunity to launch a political battle against Florida’s laws recognizing the rights of non-biological parents. In November, about 24 hours after the couple’s baby was born, the attorney general filed a motion to intervene in the case. He sought to invalidate the surrogacy contract as unconstitutional, denying the couple’s claim of parentage over their child. (All filings in this case are sealed under Florida law; I learned of the attorney general’s arguments through conversations with two lawyers for the couple, Katie Jay and Michele Feinzig, who did not share any confidential information.)
Jay, who’s handling the case on appeal, told me that Uthmeier raised two related arguments. First, he wrote that surrogacy contracts—which, again, have been legal in Florida for 33 years—violate the 13th Amendment to the U.S. Constitution, which outlawed slavery. These contracts, he said, unconstitutionally treat children as property, rendering them null and void. Second, the attorney general asserted that Article 1, Section 2 of the Florida Constitution bars biological parents—like egg and sperm donors—from transferring their parental rights to another party. This provision simply states that “all natural persons” are “equal before the law and have inalienable rights.” But Uthmeier insisted that hidden in this guarantee is, in effect, a prohibition against the donation of genetic material. (No one would donate genetic material if doing so established them as legal parents of the resulting child.)
There are many problems with these theories. Perhaps most obviously, no one seriously claims that the framers of the 13th Amendment or the Florida Constitution intended to ban surrogacy or genetic donation. It is further insulting to gestational carriers, genetic donors, and intended parents to suggest that the mutual creation of a child is somehow akin to the bondage of chattel slavery. Gestational carriers are not paid for giving up a child (who is not related to them anyway); they are compensated for the time they spend carrying a pregnancy, as well as the various expenses attendant to that process. The child is then placed in a stable home, where studies show they will as their peers. Analogizing these children to the offspring of enslaved women—who were frequently ripped from their biological mothers and sold into a lifetime of brutal, uncompensated labor—is profoundly offensive.
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But there’s a more basic legal issue here: Like every other state, Florida law has long recognized the rights of non-biological parents over their children, and established these rights via contract. One of the oldest laws of parentage is the “marital presumption,” which automatically establishes a birth mother’s husband as the presumptive legal father, even if he is not a biological parent. The Florida Supreme Court reaffirmed this deeply rooted principle unanimously just eight years ago (with the conservative justices in agreement). Uthmeier’s theory would render this presumption unconstitutional, because it allows a non-biological father to assert parentage while severing the biological father’s claim to the child. Florida law also allows non-biological fathers and mothers to establish their parentage via contractual consent when they conceive using donated sperm, eggs, or embryos. And it permits genetic donors to formally relinquish all parental rights over “the resulting children.” This regime would also be unconstitutional if Uthmeier’s argument is correct.
Even more fundamentally, Jay pointed out that the attorney general’s theory would invalidate Florida’s adoption laws. By claiming that “it is unconstitutional for biological parents to transfer their parental rights,” Jay told me, Uthmeier’s argument “sweeps in” adoption consents, too. These consents, after all, are legal agreements that terminate a biological parent’s legal claim to a child and vest those rights in non-biological parents. They function much the same way as surrogacy contracts, which similarly establish legal parentage through contract rather than biology. But if biological mothers and fathers are constitutionally forbidden from transferring parental rights, then many adoption consents are null and void. And if Uthmeier prevails, adoptive parents across Florida could find their legal claim to their children suddenly open to challenge, potentially by the very birth parents who relinquished them, or by the state.
Feinzig, who represented the couple targeted by Uthmeier, told me she worries that their particular circumstances may obscure the broader ramifications of the attorney general’s arguments. “Yes, this case is a same-sex couple,” she said. “But it’s not just same-sex couples who use surrogacy. Single women do. Single men do. Heterosexual couples do. Every configuration there is, people use surrogacy.” Jay pointed out that while Uthmeier’s “legal arguments draw no distinction between same-sex and opposite-sex couples,” his “public commentary on surrogacy centers on same-sex parenting.”
“That gap matters,” Jay said, “and Floridians should notice it. He describes this as a challenge to surrogacy. It’s really a challenge to most assisted reproduction—regardless of who the parents are.”
Right now, the battle over who gets to be a parent in Florida is playing out in sealed court records at a state appellate court. But it’s barreling toward the Florida Supreme Court, which is dominated by reactionary DeSantis appointees. The attorney general has given every indication that he plans to fight this to the top, part of a political strategy to weaponize the state judiciary against all manner of reproductive freedom. He previously convinced a court to strike down the state’s judicial bypass law, which allows minors to ask a judge for permission to terminate a pregnancy without their parents’ consent. Now he is trying to topple laws that have allowed thousands of couples, gay and straight, to grow their families with full legal protection. He appears to be aligned with DeSantis in his hostility toward assisted reproduction: The governor has pressed the Legislature to radically restrict access to surrogacy, though so far it has only barred certain foreign nationals from working with gestational carriers in the state.
Feinzig cannot fathom why the DeSantis administration has picked this battle. “I don’t think the public fully understands how many people need surrogacy to have a child,” she told me. “Every single person is valuable. Every family is valuable. It boggles the mind that the attorney general would want to take this option away from so many people.” Yet Florida’s DeSantis-stacked judiciary may soon have an opportunity to do exactly that.