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Assisted Reproduction

Solomonic Ruling In Florida Grants Custody Of Child To Both Lesbian Mothers

It is refreshing to see 2012 start off on such a good note (even if the ruling was from late 2011):

They fell in love, moved in together in a house in central Florida and had a baby girl. Now they are fighting over who should raise the child. But unlike most couples, they are two women. One donated the egg. The other had it implanted into her womb and carried the child to term.

So which one is the mother? The woman who bore the child says it is she and she alone.

A circuit judge in Brevard County, writing that it broke his heart to say so, ruled that she’s right. Under Florida law, a woman who gives birth is the mother. Late last month, however, a state appeals court in Daytona Beach overturned his decision, saying the other mother has parental rights too. The 5th District Court of Appeal ruled that the U.S. and Florida constitutions trump Florida law and give parenting rights to both women. State law, it added, has not kept up with the times. “This is a unique case, and the appellate courts in Florida have never before considered a case quite like it,” it said.

Although growing numbers of families have two parents who are the same sex, few involve children whose chromosomes come from one woman but who were carried to term by another. Still, it’s an important decision with a wider implication, said Nancy Polikoff, a law professor at American University Washington College of Law and expert on gay-and-lesbian family law. “Any ruling that supports the right of a same-sex couple … is important for its willingness to recognize that these families exist and a child raised in this environment shouldn’t be forced to give up a parent,” she said.

In this case, the couple had been in a committed relationship for 11 years, according to court records. Several years ago, they decided to have a child, went to counseling to prepare for it and then discovered that one of them, then a 39-year-old law enforcement officer, was infertile. The couple went to a reproductive doctor, and the other would-be mom, then 34 and also a law enforcement officer, donated an egg to be fertilized. It was implanted in her partner’s womb, and a baby girl was born the first week of 2004.

The couple gave the baby a hyphenated version of their last names, but the child’s birth certificate bore only the name of the mother who had carried her to term. The father was an anonymous sperm donor who had waived his rights. The child treated both women as parents, according to the appeals court ruling, even after they split up when the girl was 2.

A year and a half later, the birth mom disappeared with the child, leaving the country without telling her former partner where they had gone. Eventually the egg-donor mother tracked them down in Queensland, Australia. They have since returned to Florida. Attorneys for both women did not return phone calls.

The appeals court handed down its ruling Dec. 23. It asks the Florida Supreme Court to weigh in on a very narrow legal issue: Does a woman in a lesbian relationship who gives her egg to her partner have no legal rights to the child it produces?

Camilla Taylor, a family lawyer with LAMBDA Legal Defense and Educational Fund, a nonprofit group that works on behalf of gays and lesbians, praised the ruling. “I think it’s clear the court reached the correct result, and courts are moving toward greater protections for families that involve either varying kinds of biological connections to their children or who have no biological connection but have functioned as parents in a child’s life,” she said.

The appeals court ordered the case back to the trial judge, Circuit Judge Charlie Crawford in Viera, instructing him to give the egg-donor mother access to her daughter and to iron out custody, visitation and child-support issues. The thing on which he should focus, the appeals court wrote, is the child’s well-being. That edict to focus on the child is one of the most heartening things about the ruling, Polikoff said.


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