COURTS

Fla. Supreme Court settles lesbian custody battle

 

Associated Press

The Florida Supreme Court ruled Thursday that a woman who donated an egg to her lesbian partner has parental rights to the child and ordered a lower court to work out custody, child support and visitation arrangements.

The case involves two women, identified only by their initials, who had a child together. One donated an egg that was fertilized and implanted in the other, who gave birth in 2004.

But two years later the Brevard County couple split up, and the birth mother took the girl and left the country. The other woman, who identifies herself as the biological mother, used a private detective to find her former partner in Australia, and a custody fight ensued.

The birth mother tried to use a Florida law that prevents sperm or egg donors from claiming parental rights to children born to other couples. Her lawyer also cited a standard form donors are required to sign relinquishing parental rights. The court rejected both arguments, saying the law doesn’t apply in this case because the couple clearly planned to parent the child together.

The court wrote that the case didn’t have to be an "all-or-nothing decision" on which parent had rights to the child.

"The couple’s actions before and after the child’s birth — including their use of funds from their joint bank account, their statements to the reproductive doctor that they intended to raise the child as a couple, the counseling they underwent to prepare themselves for parenthood, the use of a hyphenated last name for the child, and the joint birth announcement — reveal that the couple’s agreement in actuality was to both parent the child," the court wrote.

The decision doesn’t throw out the Florida law and it can still be applied in cases where anonymous donors provide sperm or eggs to couples.

"If you were a sperm donor, would this help you get parental rights? No, it wouldn’t," said Elizabeth Schwartz, a Miami Beach attorney who specializes in family law and who advocates for gay and lesbian issues. "They really looked at what was intended ... The law wasn’t thrown out, it was just thoughtfully applied."

The biological mother cried when she heard the news, said lawyer Robert Segal, who represents the woman. She has not seen her daughter in six years. The girl will be 10 in January and now is in Florida, but the birth mother has not been cooperative in providing details about her life, Segal said.

"The case represents a recognition of the fundamental right a parent has to parent their child, regardless of that parent’s sexual orientation or the manner by which the child is conceived," said Christopher Carlyle, a lawyer who assisted on the biological mother’s appeal. "You had a unique situation where there was no intent of our client to donate this biological material and then be out of the picture. They obviously intended to raise the child together."

The lawyer for the birth mother didn’t immediately return a phone message left at his office.

A trial judge ruled for the birth mother and said the biological mother has no parental rights under state law, adding that he hoped his decision would be overturned.

The 5th District Court of Appeal in Daytona Beach sided with the biological mother and said both women have parental rights.

"It would indeed be anomalous if, under Florida law, an unwed biological father would have more constitutionally protected rights to parent a child after a one night stand than an unwed biological mother who, with a committed partner and as part of a loving relationship, planned for the birth of a child and remains committed to supporting and raising her own daughter," the court wrote.

Schwartz said that if not for the fact that the biological mother donated her egg, the case might have turned out differently. If the birth mother had one of her own eggs fertilized, her partner might not have won parental rights.

"What would be great is if a case like this could then lead to the next case, which would be respecting the intentions to co-parent of a couple even when there is not that biological connection and gestational connection," Schwartz said. "I think there’s lots of language here that gets us closer to it."

Follow Brendan Farrington on Twitter: http://twitter.com/bsfarrington

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