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Fla. Supreme Court Wades Into 'Brave New World' Of Same-Sex Custody Law

The Florida Supreme Court heard oral arguments this week in a child-custody dispute between two women. Legal experts say, the case highlights how state law does not reflect scientific advances and the variety of family structures that exist in Florida.

Professor Sarah Sullivan teaches at Florida Coastal School of Law in Jacksonville. As a member of the Florida Bar Executive Council on Family Law, she says, she’s been closely following the custody case as it’s worked its way through the court system. Sullivan says, the case raises a few questions that no Florida court has answered before.

“We’re kind of in a brave new world as it applies to the definition of 'family,' the definition of 'parent,' the definition of 'couple.' So I think that, from a legal perspective, from a practitioner’s perspective, it’s a very exciting time," she said.

The two women are fighting for parental rights to their 8-year-old daughter. In 2003, to conceive the girl, they had one woman’s eggs implanted in the other’s womb. The girl, therefore, has one birth mother but a different biological mother. The two women raised her together until they split up in 2006. The birth mother then cut off all contact with her former partner and took their child to Australia, where she eventually tracked them down. Professor Sullivan calls the case tragic.

“I think everyone can look at this particular case and see two parents who raised a child and now one parent is not having that opportunity to continue that relationship," she said.

State and federal law would normally recognize parental rights for a biological mother who raises her own child. But the trial judge in the original custody suit said Florida law doesn’t allow him to, in this case. That’s because egg and sperm donors relinquish parental rights to the couple having the child. And, he said, because "couple" is defined as "one man and one woman" in the statute, he had no choice but to classify the biological mother as an "egg donor."

But court records show that although the judge felt bound by the law, he told the biological mother, “If you appeal this, I hope I’m wrong.”

And, Sullivan says, a lower court said not only was he was wrong, but so was the law, statute 742.14, that had guided his decision.

“It basically said that 742.14 did not apply and it was also unconstitutional, which is what led to the appeal of the birth mother up to the Supreme Court of Florida," she said.

Arguing for the birth mother, attorney Michael B. Jones said other courts have recognized a birth parent’s right to privacy when it comes to parenting.

“A step-parent, a grandparent, under many different kinds of circumstances, may have a relationship with the child, but when the actual parent decides that that relationship is no longer appropriate for the child, then that is terminated," he said.

Jones’s argument led Justice Barbara Pariente to ask how the biological mother was not seen as an actual parent, when a man who fathers a child out of wedlock is given that right, as long as he participates in raising the child.

“Is that not a situation that at least implicates equal protection of women, at least to have equal protection as men?" she asked.

But Justice Ricky Polston asked whether the court could even consider such constitutional issues, as long as Florida law still defines a couple as one man and one woman.

“So it seems like you’re asking this court to implement social policy that’s not reflected in the Florida statutes, not in the Florida Constitution or, to me, in the U.S. Constitution. But you’re asking us to make a constitutional ruling on social policy," Polston said.

But the biological mother’s attorney, Robert Segal, responded: "We're asking the court to make a determination that appellee has protected parental rights, based on the actions of the parties.”

Segal said his client was not merely an egg donor but an equal parent until her child was taken away from her.

And at the time the child was born, Florida law banned gay adoption, so the woman didn’t have the choice to adopt her child. The ban was declared unconstitutional in 2010.

Professor Sullivan says, how this court defines parental rights, could have implications beyond Florida.

“This  is going to become a huge issue, and it’s interesting because I’ve talked to people up in Massachusetts, and they recognize same-sex marriage. There’s a question of whether you still need to do an adoption, even though you’re still married. And you’d think they have it all figured out because it’s been around for several years up there, but the practitioners I’ve talked to say, ‘There are still a lot of questions.’" she said.

But, Sullivan says, it’s possible the court won’t be answering any questions at all in this case. It could toss the case back down to a lower court.

Or, she says, the judges’ decision could come down to a piece of paper. It’s a form the biological mother signed in her doctor’s office just before her egg-retrieval procedure. And it said she waived parental rights. But, a lower court found that waiver invalid because it contradicted her actions in the years that she helped raise her daughter.

It’s a very complex case. And family lawyers across the country are watching it closely.