THE CAPITAL, TALLAHASSEE, February 17, 2012
Jim Saunders, The News Service of Florida
In what might be a first-of-its-kind case in Florida, the state Supreme Court could hear a parental-rights battle between two former lesbian partners who, through in vitro fertilization, each played a role in the birth of a child.
The fertilized egg of one of the women was implanted in the other partner, who gave birth in 2004 in Brevard County. They later separated, touching off a custody battle that included the birth mother taking the child to Australia.
The 5th District Court of Appeal in December ruled that the woman who provided the fertilized egg should be able to share parental rights with the birth mother. The court also called for the Supreme Court to take the case, and the birth mother gave notice last week that she would appeal to the high court.
In a 2-1 decision, the majority of the appeals court said the case pointed to the inadequacy of current state laws in dealing with such situations and said the constitutional rights of the woman who provided the egg had been violated. The decision overturned a ruling by a Brevard County circuit judge.
"It is unknown what caused these two women to cross the proverbial line between love and hate, but that is a matter between (the women),'' said the majority opinion, written by appeals-court Judge Thomas Sawaya. "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.''
In a concurring opinion, Judge David Monaco pointed to the potentially groundbreaking issues in the case.
"We have arrived at a judicial event horizon,'' Monaco wrote. "We need legislation to guide us in dealing with the cases that will in the future come before the courts of this state as a result of the combination of the societal changes that we have all witnessed in the years since the relevant statutes were adopted and the still evolving science concerned with human fertility."
But in a dissenting opinion, Judge C. Alan Lawson said state law makes clear that the woman who gave birth is the legal mother of the child. Also, he wrote that state law clearly states that egg donors relinquish parental rights and indicated that the majority abandoned "judicial restraint" in its ruling.
"I would note that the statute in question here is not directed just at men or women, heterosexuals or homosexuals, or any other narrow class,'' Lawson wrote. "It places broad limits on the rights of all citizens to make a parentage claim after donating genetic material to another."
It could take months before the Supreme Court announces whether it will hear the case. The appeals court documents only identified the women by initials and did not provide information about where they live.