The 5th District Court of Appeal has overruled a circuit judge in Brevard County, Fla., and has determined that both partners of a newly separated lesbian couple have parental rights over their young daughter.
The two women, identified as Appellee and Appellant, have waged a legal war over who should raise the child. One woman, Appellant, donated her egg and is thus the biological mother. The other woman, Appellee, carried and gave birth to the child.
Court documents show that the women were in a committed relationship for 11 years.
According to the Orlando Sentinel, a Brevard County judged had ruled previously that while it “broke his heart” the Florida law set the precedence that the woman who bore the child should alone have parental rights.
However, the appeals court in Daytona overturned this decision saying that the U.S. and Florida constitutions are superior to Florida law and that both women have parental rights.
According to the case document, the judge wrote that this case is unique and Florida has never before considered a case similar to it.
In the decision, the district court noted that it was in the best interest of the child not to lose either parents. The court ruling even compared this case with that of the biblical judgment of Solomon:
Appellee suggests that because she and Appellant have separated, a choice must be made. She posits that, as the birth mother, she should have exclusive parental rights to the child and that Appellant, as the biological mother, should have no rights at all. If we were to accept Appellee’s argument that a choice must be made between the two, perhaps a Solomonic approach to resolving this dispute would be preferable, but we are neither possessed of the wisdom of Solomon nor are we able to apply his particular methodology under the law as we know it today.
Parental rights, which include the love and affection an individual has for his or her child, transcend the relationship between two consenting adults, and we see nothing in this record that makes either Appellant or Appellee an exception that places those rights in one to the exclusion of the other… Their separation does not dissolve the parental rights of either woman to the child, nor does it dissolve the love and affection either has for the child.
The biblical story of King Solomon involves an argument between two women who each claimed to be the child’s mother. Solomon threatened to solve the dispute by cutting the child in half. Upon hearing this threat, the real mother shrieked in horror and was willing to let the other woman keep the child in order to save its life.
Of course, this biblical analogy falls short in that modern technology has allowed both Florida women to be the mother, whether it be by biology or birth.
Nancy Polikoff, a law professor at American University Washington College of Law and expert on gay-and-lesbian family law, told the Orlando Sentinel that this court ruling has a wide implication.
"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.
The “edict to focus on the child,” Polikoff continued, “is one of the most heartening things about the ruling.”
The decision was reached on Dec. 23.