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Nov 12 2013

FL Supreme Court Upholds Gay Parenting Rights

In a ruling that I’m absolutely astonished could find three votes against it, the Florida Supreme Court has ruled that a lesbian parent who donated the egg that her former partner carried can’t have her parental rights eliminated at the whim of that now-estranged partner.

A lesbian mother who separated from her partner does not lose her parental rights to a child born during the relationship, a divided Florida Supreme Court ruled Thursday.

The 4-3 opinion strikes down the state law on assisted reproductive technology as unconstitutional and affirms a decision by the Fifth District Court of Appeal upholding parental rights for same-sex couples who jointly conceive a child.

The birth mother moved to Australia and cut access to the child born in 2004. The estranged partner whose fertilized egg was used in the pregnancy challenged the loss of rights and access in a state were same-sex marriage is barred.

Justices Barbara Pariente wrote for the majority in the closely watched dispute, which decided the case on federal equal protection and state privacy grounds. Chief Justice Ricky Polston and Justices R. Fred Lewis and Charles Canady dissented.

This has nothing to do with same-sex marriage. Just like a father has parental rights even if the mother leaves him, whether they are married or not, so does a mother who donated the egg. How on earth could a judge rule otherwise?

Pariente said that the mother identified in court records only as D.M.T., who took the child to Australia, is not being denied her right to parent. The decision only requires that T.M.H.’s right to parent be recognized.

“D.M.T.’s preference that she parent the child alone is sadly similar to the views of all too many parents, who after separating prefer to exclude the other parent from the child’s life,” she wrote.

The birth mother defended severing the biological mother’s ties the circumstance by noting the biological mother signed a standard informed consent form at the clinic where the egg was donated.

The Fifth District rejected the birth mother’s argument that the biological mother waived her parental rights by signing that form because T.M.H. did not fall within the statutory definition of “donor.”

“It is clear that the very purpose of the biological mother’s provision of the egg to her partner was to enable each party to become parents of the child they wished to conceive,” Pariente said.

The parents were a couple from 1995 to 2006 and the birth mother delivered their child in January 2004.

This is as open and shut a case as I can imagine, yet three judges dissented.

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  1. 1
    laurentweppe

    This is as open and shut a case as I can imagine, yet three judges dissented

    Some judges just don’t give a shit about the rule of law when it conflict with their prejudices.

  2. 2
    Raging Bee

    Are the judges elected? That could explain some judges’ unwillingness to stand against entrenched prejudice.

  3. 3
    Artor

    I imagine this was a tough decision for the dissenting judges. Normally, it would be an easy choice to rule against a lesbian for the horrible choice of being a lesbian. But in a case where both parties are lesbians, how do you screw one over without benefiting the other? I’m a little surprised they didn’t order the child cut in half so both could be screwed. This was in Florida after all.

  4. 4
    colnago80

    Re Raging Bee @ #2

    To answer the Fairfax foney’s query, judges are elected in Florida to 6 year terms.

    http://www.ninja9.org/courtadmin/courg.htm

  5. 5
    Pierce R. Butler

    Florida Supreme Court judges are not elected, though those on lower benches are.

    However, state Supremes are subject to retention votes: after nominated by the governor and approved by the state Senate, after a few years their names automatically go on a statewide ballot asking voters should they be retained.

    Please recall that Florida has not had a Democratic governor since the late ’90s, so the Court is full of Bush/Crist/Scott appointees.

  6. 6
    Ibis3, Let's burn some bridges

    As a devil’s advocate (and not a lawyer), my guess is that the dissenting judges were probably likening the case to a sperm donor who has no automatic parental rights. Then again, they could have easily seen the birth mother as if she were a surrogate without parental rights too. Then what? Anyway, I’m glad the court made the correct decision.

  7. 7
    eric

    my guess is that the dissenting judges were probably likening the case to a sperm donor

    Maybe they did, but that would’ve required some hefty mental gymnastics on their part. Sperm donors don’t generally co-habitate with the receiver for two years, helping to raise the child after they donate.

  8. 8
    eric

    Incidentally, here is a link to the ruling (its the one with the initials). And Ibis you’re right, the dissenting judges do, basically, argue that this is primarily a contract question and that TMH was essentially just a donor with no contractual rights.

    They also seem to accept at face value DMH’s claim that the two never agreed or intended to raise the child together. Which is quite extroadinary given the factual history. That, for me, makes it clear that the dissenters were pretty much looking for any flimsy excuse they could not to recognize the other parents’ rights. Seriously SCOTFL, they went to parenting classes together. How could you possibly buy DMH’s line?

  9. 9
    paul

    Attempts have been made (by states, not by birth mothers so far as I know) to collect child support from sperm donors. I wonder if any such attempt will ever be made against an egg donor.

  1. 10
    FL Supreme Court Upholds Gay Parenting Rights – Freethought Blogs | Accident Attorney St. Petersburg

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