Same-sex custody battle fuels debate

2012-03-05 13:00

Tallahassee - A custody battle in Florida between two lesbians could fuel the growing national debate over the definition of motherhood.

It also might force state lawmakers to reconsider a 19-year-old law regarding the rights of sperm and egg donors.

The women, now in their 30s and known in court papers only by their initials, were both law enforcement officers in Florida. One partner donated an egg that was fertilised and implanted in the other. That woman gave birth in 2004, nine years into their relationship.

But the Brevard County couple separated two years later, and the birth mother eventually left Florida with the child without telling her former lover.

The woman who donated the egg and calls herself the biological mother finally tracked them down in Australia with the help of a private detective.

Their fight over the now 8-year-old girl is before the state Supreme Court, which has not announced whether it will consider the case. A trial judge ruled for the birth mother and said the biological mother has no parental rights under state law, adding he hoped his decision would be overturned.

Outside-the-body technologies

The 5th District Court of Appeal in Daytona Beach obliged, siding with the biological mother and saying both women have parental rights.

At issue is the 1993 state law meant to regulate sperm and egg donation. Scholars debate whether the constitutional right to procreate includes outside-the-body technologies used to conceive.

Also at issue are constitutional questions about gay people's right to raise children and claim equal protection under the law. Another appellate court ruled Florida's ban on gays being able to adopt unconstitutional in 2010.

The biological mother, however, isn't concerned about being a legal or social pioneer, her lawyer said. She just wants her child back in her life.

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

The birth mother's lawyer, Robert Wheelock of Orlando, did not respond to written questions sent by e-mail.

Mommy battles

The battle over what defines motherhood is being played out on prime-time television shows and in courtrooms across the country.

Lisa Miller, a Virginia woman who renounced her homosexuality, has been in hiding with her daughter since 2009 after a court ordered that her former partner, Janet Jenkins, be given custody.

The two entered into a civil union in Vermont in 2000. Miller's own egg was artificially inseminated and she gave birth.

The Virginia Supreme Court ultimately agreed with a Vermont judge's custody decision; the case raised questions about one state's duty to recognise same-sex relationship rights created by laws in another.

More recently, former North Carolina state Senator Julia Boseman, the first openly gay member of that state's Legislature, is suing for joint custody of a 2-year-old son born to a woman Boseman had called her spouse.

In the Florida case, the women agreed to use "reproductive medical assistance", have a child and raise that child as a couple, court records show.

Maternal rights

It's unknown why they later decided to separate, but "their separation does not dissolve the parental rights of either woman, nor does it dissolve the love and affection either has for the child", the appellate decision said.

The birth mother cites the state's law on sperm and egg donation, which says that donors "relinquish all maternal or paternal rights", to argue that the biological mother wasn't the child's parent.

The trial judge ruled for the birth mother, but said he didn't agree with the law and told the biological mother, "If you appeal this, I hope I'm wrong."

The appellate judges reversed him 2-1 in a decision that found the biological mother wasn't a "donor" as contemplated by the law because she and her partner intended to be parents together.

"We can discern no legally valid reason to deprive either woman of parental rights to this child," said the majority opinion by Judge Thomas Sawaya. He ruled that the donor law was unconstitutional as applied in the case.

That law was passed 15 years after Louise Brown, the world's first "test tube" baby, was born. But Judge David Monaco, in a concurring opinion, said the statute "was not designed to resolve the problem of how to treat children born by in vitro fertilisation to a same-sex couple".

Risk of invalidating laws

One of the original sponsors of that law agrees.

"I think it's unlikely we discussed this kind of fact situation," said Brian P Rush, a Tampa lawyer who served in the Florida House at the time as a Democrat. "We were trying to facilitate assisted reproduction technologies ... and eliminate litigation."

But in a blistering dissent, Judge C Alan Lawson said the trial judge got it right. A child can have only one mother, he wrote.

The court shouldn't recognise two mothers "unless we are also willing to invalidate laws prohibiting same-sex marriage, bigamy, polygamy or adult incestuous relationships on the same basis", Lawson said.

Moreover, allowing people to plead intent could allow any donor to "make an after-the-fact claim" for parental rights, he said.

Monaco and Lawson agreed, however, that the Legislature needs to pass a new law on the science of human reproduction to reflect the times.


"We think we're solving problems with technology, but it just leads to more problems," said Alan Williams, a health law professor at Florida Coastal School of Law in Jacksonville. "Moral and ethical dilemmas arise that laws were never made to deal with."

John Stemberger, president of the conservative Florida Family Policy Council, says the appellate court's decision "redefines the legal nature of families in opposition to Florida's law and constitution".

Florida voters adopted a constitutional amendment banning same-sex marriage in 2008.

Shannon McLin Carlyle, an appellate attorney who also is representing the biological mother, said the majority didn't come up with a gay rights decision: "It's a pro-parent decision."

"But it does solidify gay couples' right to retain a relationship with their child," she said. "If it goes the other way, parenthood could be subject to risk on the whim of the other partner."

Ultimately, the state Supreme Court may have to wrestle with Judge Monaco's closing sentences: "We still ought to come to grips with what is best for the child. Here, having two parents is better than one."

  • Philemon - 2012-03-05 13:34

    There will be no such problem or laws like this in Zimbabwe. Thanks Prez Bob.

      Paul - 2012-03-05 14:08

      Go live in Zim then, idiot.

      louis.langenhoven - 2012-03-05 15:11

      Bob's the man!

  • Paul - 2012-03-05 14:08

    Some of you people belong in the 10th Century. Our world is changing and everything has to change with it. Get with the programme.

      butch.poulter - 2012-03-05 14:27

      Changing into a regular S%^t hole. Human rights etc etc has led to the degrigation of society. A really sparkling future for the confused kid.

      Godfrey - 2012-03-05 14:38

      And what makes you so morally superior to every else? Careful now!

  • sardick.davids - 2012-03-05 14:10

    I am eternally gratefull that my wife and I have a mother(female)and a father(male)and my kids have a mother(female) and a father(male).I honestly hope and pray that my kids will honour their children and the generations to come with the same..

      Godfrey - 2012-03-05 14:41

      Ah. Somebody wanting everyone to know how devout .......... ...... and homophobic he is.

      Gerhard - 2012-03-05 15:06

      In my family we always knew who the males and the females are.

  • Jimmy - 2012-03-05 14:41

    terrible scenario indeed. one thing is for sure tho, these parents WANT to be involved in the lives of their children, regardless of whether the children were the result of a shake-bake test tube or a turkey baster. a lot can be said for those 'regular' relationships where one parent or the other wants nothing to do with their own child. being a parent has nothing to do with gender, race, religion, orientation, biology. its a human instinct thing. or am i completely wrong?

  • Charlie - 2012-03-05 14:49

    I don't get why this is being turned into a gay/straight issue. There are two parents who want to love their child. One parent is being a prat. Had it been a man and woman, the baddie would be dragged to court. Do the same here. Equal visitation rights and custody. How difficult was that now?

      Gerhard - 2012-03-05 15:11

      Charlie Elford. Confused?

      Charlie - 2012-03-05 16:33

      Which part of my name is confusing you, Gerhard?

      Gail - 2012-03-05 19:50

      The problem in this case is that the one parent has removed the child to another continent without the permission of the other. If the parent from America has enough money to sue the other parent in Australia why can't they come to an agreement about custody and visitation rights and have a legal document drawn up by notaries when both sides are satisfied. I have to say that I am opposed to any artificial means of having a baby for precisely this reason regardless of race, sex, gender etc. This is all about money and anyone who has the kind of money to spend on attempting to have their own child by whatever means possible then they are deranged. I think back to the sextuplets which were implnted and birthed by their grandmother right here in SA and I remember that their parent's marriage couldn't handle the strain and they were divorced. Likewise octomom whose elderly parents and the children are paying a heavy price because their unemployed mother is selfish and doctors are greedy. In a world which is overpopulated and has children starving and orphaned why can't these people use their money to assist the already born children who may or may not have parents? We are talking hundreds of thousands of rand here for the possibility of having a child.

  • grantdean10 - 2012-03-05 14:55

    Maybe you should pick up the Bible and read what it says about homosexuality.... To put it bluntly, God hates it!!!!!

      Charlie - 2012-03-05 15:06

      Not everybody believes in your god or reads your bible. Respect those who are different to yourself.

      allcoveredinNinjas - 2012-03-05 15:07

      Why did he make gay people then?

      Paul - 2012-03-05 15:21

      @grantdean10: God made gay people to show just how STUPID and BIGOTED some others can be.

      Godfrey - 2012-03-05 15:54

      When some religious people want to use ancient texts to justify acting upon their prejudices, citing the book of Leviticus suits them just fine. On the other hand, when such people want to indulge in practices prohibited by those same ancient texts, ignoring the bible suits them just fine. For example, Leviticus. Particularly the bit about no tattoos. It's amusing stuff. I frequently wonder why, among the many rules and prescriptions therein, Christians don't sacrifice oxen or go to the "priest" to be inspected for "white marks". It's all there, right next to the warning regarding the abomination of homosexuality

      Gail - 2012-03-05 19:59

      He also hates pork and gossip and violence towards women and men. God makes gays and lesbians and heterosexuals and variations in between and He will have to judge them. If He makes mistakes then let Him put it right and we as mere humans should follow the ten commandments and love and respect others the way we would like to be loved and respected.

  • ludogideon - 2012-03-05 15:22

    My humble opinion on this is that it shouldve be made illegal for this couple to have this child in the first place. Adoption is something else but the way that they did it was a preparation for a possible fight. I mean they are both women but they felt that they both need to have some connection with the child by taking eggs from one and placing then inside the other. I couldve swon that the gay people they just want to be treated an equal human beings with equal rights and right they are no doubt. I support them fully with no questions but this experimentation with children is sick if anyone cares what my onion in. This is cruel and vile. They both do not deserve that child because cleary they are doing this to hurt each other rather than for the love the have for the child or for the child's best interest. I say the social services must snatch that child from them and be put up for adoption to a loving, deserving family gay or not.

      louis.langenhoven - 2012-03-05 15:35

      hey you trying to outdo Solomon here hey bru?

      Charlie - 2012-03-05 16:34

      And all the kids in orphanages are from gay couples, right? And there are NO gay couples who raise children in a loving environment, right? Feel free to come around to my house - our son can teach you a thing or two about unconditional love and respect

  • Se-a Spencer Ikeremm - 2012-03-05 17:33

    I would fight for the child even if I'm not the biological mother. It's something I thought of a while back, seeing as something like this could actually happen to me.

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