Same-Sex Custody Battle Could Change Florida Law

A custody battle in Florida between two lesbians could fuel the growing national debate over the definition of motherhood.

It also might force state lawmakers to reconsider a 19-year-old law regarding the rights of sperm and egg donors.

The women, now in their 30s and known in court papers only by their initials, were both law enforcement officers in Florida. One partner donated an egg that was fertilized and implanted in the other. That woman gave birth in 2004, nine years into their relationship.

But the Brevard County couple separated two years later, and the birth mother eventually left Florida with the child without telling her former lover. The woman who donated the egg and calls herself the biological mother finally tracked them down in Australia with the help of a private detective.

Their fight over the now 8-year-old girl is before the state Supreme Court, which has not announced whether it will consider the case. A trial judge ruled for the birth mother and said the biological mother has no parental rights under state law, adding he hoped his decision would be overturned.

The 5th District Court of Appeal in Daytona Beach obliged, siding with the biological mother and saying both women have parental rights.

At issue is the 1993 state law meant to regulate sperm and egg donation. Scholars debate whether the constitutional right to procreate includes outside-the-body technologies used to conceive.

Also at issue are constitutional questions about gay people's right to raise children and claim equal protection under law. Another appellate court ruled Florida's ban on gays being able to adopt unconstitutional in 2010.

The biological mother, however, isn't concerned about being a legal or social pioneer, her lawyer said. She just wants her child back in her life.

"She hasn't seen her daughter in years, and it's been terribly, terribly difficult for her," said Robert A. Segal, a family law attorney in Melbourne.

The birth mother's lawyer, Robert Wheelock of Orlando, did not respond to written questions sent by email.

The battle over what defines motherhood is being played out on prime-time television shows and in courtrooms across the country.

Lisa Miller, a Virginia woman who renounced her homosexuality, has been in hiding with her daughter since 2009 after a court ordered that her former partner, Janet Jenkins, be given custody.

The two entered into a civil union in Vermont in 2000. Miller's own egg was artificially inseminated and she gave birth. The Virginia Supreme Court ultimately agreed with a Vermont judge's custody decision; the case raised questions about one state's duty to recognize same-sex relationship rights created by laws in another.

More recently, former North Carolina state Sen. Julia Boseman, the first openly gay member of that Legislature, is suing for joint custody of a 2-year-old son born to a woman Boseman had called her spouse.

In the Florida case, the women agreed to use "reproductive medical assistance," have a child and raise that child as a couple, court records show.

It's unknown why they later decided to separate, but "their separation does not dissolve the parental rights of either woman, nor does it dissolve the love and affection either has for the child," the appellate decision said.

The birth mother cites the state's law on sperm and egg donation, which says that donors "relinquish all maternal or paternal rights," to argue that the biological mother wasn't the child's parent.

The trial judge ruled for the birth mother, but said he didn't agree with the law and told the biological mother, "If you appeal this, I hope I'm wrong."

The appellate judges reversed him 2-1 in a decision that found the biological mother wasn't a "donor" as contemplated by the law because she and her partner intended to be parents together.

"We can discern no legally valid reason to deprive either woman of parental rights to this child," said the majority opinion by Judge Thomas Sawaya. He ruled that the donor law was unconstitutional as applied in the case.

That law was passed 15 years after Louise Brown, the world's first "test tube" baby, was born. But Judge David Monaco, in a concurring opinion, said the statute "was not designed to resolve the problem of how to treat children born by in vitro fertilization to a same-sex couple."

One of the original sponsors of that law agrees.

"I think it's unlikely we discussed this kind of fact situation," said Brian P. Rush, a Tampa lawyer who served in the Florida House at the time as a Democrat. "We were trying to facilitate assisted reproduction technologies ... and eliminate litigation."

But in a blistering dissent, Judge C. Alan Lawson said the trial judge got it right. A child can have only one mother, he wrote.

The court shouldn't recognize two mothers "unless we are also willing to invalidate laws prohibiting same-sex marriage, bigamy, polygamy or adult incestuous relationships on the same basis," Lawson said.

Moreover, allowing people to plead intent could allow any donor to "make an after-the-fact claim" for parental rights, he said.

Monaco and Lawson agreed, however, that the Legislature needs to pass new law on the science of human reproduction to reflect the times.

"We think we're solving problems with technology, but it just leads to more problems," said Alan Williams, a health law professor at Florida Coastal School of Law in Jacksonville. "Moral and ethical dilemmas arise that laws were never made to deal with."

John Stemberger, president of the conservative Florida Family Policy Council, says the appellate court's decision "redefines the legal nature of families in opposition to Florida's law and constitution." Florida voters adopted a constitutional amendment banning same-sex marriage in 2008.

Shannon McLin Carlyle, an appellate attorney who also is representing the biological mother, said the majority didn't come up with a gay rights decision: "It's a pro-parent decision."

"But it does solidify gay couples' right to retain a relationship with their child," she said. "If it goes the other way, parenthood could be subject to risk on the whim of the other partner."

Ultimately, the state Supreme Court may have to wrestle with Judge Monaco's closing sentences: "We still ought to come to grips with what is best for the child. Here, having two parents is better than one."