Same-Sex Custody Battle Challenges Fla. Motherhood Rights

Same-Sex Custody Battle Challenges Fla. Motherhood Rights

A lesbian couple in Florida have taken their custody battle to the state's Supreme Court, where the final decision could change the rights of sperm and egg donors and potentially ignite a debate over the definition of motherhood.

The litigants in the case are a pair of former law enforcement professionals from Brevard County, Fla., whose names have not been revealed. In court papers, the "birth mother" is identified as D.M.T., while the "biological mother" is named T.M.H.

The couple chose to conceive a child through in vitro fertilization, with one partner donating the egg and the other carrying the fertilized egg to term. In 2004, after nine years of dating, the couple's daughter was born.

After the couple separated six years later, the birth mother took her daughter and left the state without the other woman's knowledge. The partner who donated the egg, who refers to herself as the biological mother, eventually tracked down the birth mother and daughter in Australia and went to court.

The trial court judge ruled initially that the biological mother could not have custody according to a Florida law that says sperm and egg donors relinquish all parental rights for that child. The court added, however, that the judge hoped the ruling would be overturned.

After an appeal, the decision was overturned by the 5th District Court of Appeal. The court held that both partners were entitled to be the girl's parents because the laws covering sperm and egg donors did not apply in a case where the donor intended to act as a parent along with the recipient.

In a dissenting opinion, Judge C. Alan Lawson argued that allowing intent to affect Florida's donor laws could allow anyone to "make an after-the-fact" claim on parental rights, creating even more custody battles in the future.

Lawson also added that the court could not recognize a child as having two mothers "unless we are also willing to invalidate laws prohibiting same-sex marriage, bigamy, polygamy, or adult incestuous relationships on the same basis."

The case has now gone before Florida's Supreme Court, but it has not officially stated whether or not it will hear arguments. 

Although the court's decision could have wide-reaching ramifications on both outside-the-body conception practices and same-sex couples' ability to raise children, the biological mother insists that she is not trying this case to be an activist.

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


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