Tuesday, January 10, 2012

Lesbian Couple's Parental Rights

A lesbian couple in Florida had a child. One of the couple was the child's birth-mother and the other its genetic (egg-providing) mother. (The genetic father was a sperm donor, not involved in the case.) After years of jointly rearing the child, the two mothers split up. Genetic mom sought parental rights to the child, and birth-mom resisted, claiming that 1) Florida common law recognizes only birth-mothers as mothers; 2) since Florida doesn't permit adoption by gay couples, it has prohibited lesbian couples from sharing custody of children; 3) the genetic mother was an "egg donor," required under Florida gamete-donation law to relinquish parental rights; and 4) the biological mother had relinquished her parental rights contractually, in the text of her agreement with the fertility clinic which helped the couple create the child. In this opinion, the Fifth District of Florida finds 1) that Florida in fact has no common law recognizing exclusive parental rights in birth mothers--particularly in a case like this, where the birth mother is not the genetic mother; 2) that if Florida law prevents gay couples from sharing parental responsibility for a jointly-conceived child for whom they cared as mothers for years, then that law is unconstitutional under both the US and the Florida constitutions; 3) that a biological mother who provided her lesbian partner with an egg for purposes of fertilizing and implanting it in her partner and then raising the resultant child together, is not an "egg donor" under Florida law; and 4) that the provisions of the standard pre-printed form used by the fertility clinic did not apply to the facts in the case and could not operate to vitiate the genetic mother's parental rights. This is big news, because it appears to establish a fundamental, constitutionally-protected right to procreate--even for gay couples who, under current Florida law, can neither marry nor adopt.

ABC reports that birth-mom intends to appeal the case to the Florida Supreme Court.

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