Case of Two Mothers: Custody Battle May Arrive at High Court

By: Jim Saunders, The News Service of Florida
By: Jim Saunders, The News Service of Florida


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.

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  • by Able Location: Tallahassee on Feb 20, 2012 at 06:20 AM
    This is sad. I sure hope the Supreme Court, if they should decide,will find a suitable family for the child and let it be. Close the case and never open it again.No more time for immorals of the land get on with the affairs of the country.The doctor who had a part in this mess should not practice again.
  • by grace on Feb 18, 2012 at 12:37 PM
    This is kinda messed up, I think everyone will agree. Which is probably why a doctor shouldn't be allowed to do such a thing. If the 2 women or 2 men want to live in a "loving relationship", fine, but why artificially create a child to complicate the situation? There are plenty of children who need homes that have already been born, let them adopt one of those.
  • by Michelle Location: Florida on Feb 17, 2012 at 05:05 PM
    It is a blessing to be so loved in life to have someone fight to get to spend time with you, no matter what the surrounding circumstances. The woman did not donate her egg to a clinic, she had chosen a partner with which to bring a child into the world and specifically designated her egg for that child, that is not the same thing as donating. Certainly she deserves to have a relationship with the child that she intentionally took part in creating. A father is no less a parent for lack of a womb, the act of birthing a child doesn't designate sole rights to said child. This case should be treated no differently than if the woman who gave her egg was a man who gave sperm.
  • by STOP BEING CLOSED MINDED on Feb 17, 2012 at 01:24 PM
    This really shouldn't be that difficult to decide. The birth Mother should be viewed as the Mother and the egg donor should be viewed as the Father and sahre custody just like very other divorced/seperated couple. Everyone that is having a fit over the fact that this is a same sex couple need to get over it. Two women can make terrific parents and love a child just as much as a man and a woman. A real Christian does not judge others, but they have compassion for everyone. The problem with the world today is not same sex couples it is closed mind ignornant people.
  • by C on Feb 17, 2012 at 01:02 PM
    Of all this remove the same sex marriage and the morals of this story and look at what the judge said about the rights of the birth mother and egg donor. So what about families that want to have a surrogate mother to birth? Does that mean despite everything and being paid for the service that she could then sue to keep a child not genetically her own or expected to be raise by her?
    • reply
      by A on Feb 17, 2012 at 07:15 PM in reply to C
      I would think there would be some sort of legal contract that the surrogate mother would sign relinquishing any rights she may have as a birth mother.
  • by HMA on Feb 17, 2012 at 12:56 PM
    I wonder why our forefathers didn't think of this....
  • by Just?Me Location: Edge of Reality on Feb 17, 2012 at 12:09 PM
    If things were right with our judicial system, this should be enough to end all arguements --> "state law clearly states that egg donors relinquish parental rights" End of story. Please pay the court costs on your way out.
  • by Drexell Location: TLH on Feb 17, 2012 at 11:17 AM
    God has given us free will, to make bad & good decisions; and now an innocent child is being born into a sinful world, to sinful people. Let Solomon make the decision, as he did in I Kings 3:16-28
    • reply
      by You're an idiot on Feb 23, 2012 at 04:47 AM in reply to Drexell
      He didn't make the decision you bible-skimming (I can't say thumping since you obviously didn't read it)jerk. He let them decide. He said he would cut the baby in half, the true mother couldn't bare it so she told him the other woman could have it. In this case they are BOTH the true mothers, go read the bible you are so quick to quote before you've actually read it
  • by Jim Location: Gadsden County on Feb 17, 2012 at 10:58 AM
    Here we go. We will now have to have a complete new layer of law to handle these homosexual relationships, marriages, vitro fertiilization and adoptions. I guess we will have to go back to bible on how to divide the child.
    • reply
      by Dee on Feb 17, 2012 at 12:04 PM in reply to Jim
      The only new law we need is to say doctors can't do this. There is a very good reason that we were designed the way we were - it takes two, a male and a female to reproduce. If you wanna have sex with someone of your same sex (which is a sin) fine, but do NOT drag a poor child into the mess. Adoption is a different thing, because a child is already there and needs a home. But to have children artificially born into what is not a good situation is just wrong.
      • reply
        by Wow on Feb 17, 2012 at 02:48 PM in reply to Dee
        Sure. If you are willing to give up all these "unnatural" things like meds, TVs, most clothing (which is a sin too to wear mixed fiberics), and you get the point. Then if you do all that then you can come from a moral high ground. Even that may not be backed by facts. Show were a same sex is inherently worst for a child than mixed sex? I can find though reports of were extreme religious upbringing IS a big indicator of abuse.
    • reply
      by Sigh... on Feb 17, 2012 at 01:29 PM in reply to Jim
      Remember, separate does not mean equal. One would think you bigots would have learned that in the 60s.
  • by Anonymous on Feb 17, 2012 at 10:54 AM
    This is why this should not have been done in the first place. God clearly states that it is a man and a woman, not woman and woman or man and man. This is what is wrong with our country today. I feel so sorry for this child.
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