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Florida Supreme Court rules that both women are mothers in complex custody case
November 8, 2013 - Andrea Johnson
Here's another interesting custody case that suggests the law ought to catch up with the way people are actually creating families.
Eleven years ago, a lesbian couple in Florida wanted to have a child. Apparently so they would each have a biological connection, one of the women donated her eggs, which was fertilized with sperm from an anonymous donor and implanted in her partner, who carried the baby to term. The women used funds from a joint bank account to pay for the fertility treatment, told their doctors they were going to raise the child together, gave the baby girl a hyphenated last name and sent out a joint birth announcement listing them both as mothers.
Then the relationship went south, as they often do. The woman who gave birth to the child took her and moved to Australia, claiming that she alone was the girl's mother. Under state law, she had an argument, since Florida law prevents sperm or egg donors from having parental rights to children born to other couples. But this week the Florida Supreme Court ruled that this law doesn't apply to the case of the estranged lesbian couple, since both of them had planned to be the girl's parents from the beginning. The Florida Supreme Court ruled that both women have rights and sent the case back to family court to work out custody and visitation.
The 9 1/2-year-old girl at the center of the case has not seen her egg donor for six years and the mother who gave birth to her remains hostile. I doubt that getting reacquainted with the egg donor under these circumstances will be painless or easy for her. Could any of this have been made any easier for her if the law had been clear from the beginning that both women are her mothers and have a right to see her?
There are so many odd family configurations these days resulting from the attempts of infertile couples and gays and lesbians and single men and women to have children. The method the women in Florida used to have a biological child with ties to them both is not uncommon. In some cases, apparently they ask a family member – a brother of one of the lesbian partners, for instance – to donate sperm so they can both be biologically related. In such a case, one woman would be the biological mother and the other the biological aunt of the child she is raising. But what happens in a case where the sperm donor decides he wants to act as the father? Should he have rights as well?
In other cases, well-to-do gay male couples may use an anonymous egg donor and a surrogate mother to have twins. In a lot of these cases, as with the high profile couple Neil Patrick Harris and David Burtka, each of the men provides sperm to fertilize one of the eggs, so the resulting children are both twins and half siblings. Harris and Burtka appear to be happy and are raising the children together in a happy family. But that arrangement doesn't always end so happily. Gay couple David Tutera and Ryan Jurica, who were on a cable reality show called "My Fair Wedding" did the same thing that Harris and Burtka did, each donating sperm to fertilize two eggs donated by an anonymous egg donor and implanted in a surrogate mother. A set of twins, biological half siblings, were born in July. But then Tutera and Jurica split up and, at least initially, it was reported that the twins would be split up and custody of each awarded to his or her biological father. It would seem to me that twins, even if they are biological half siblings, ought to grow up together, especially since the gay fathers deliberately set it up that way. Both men wanted to be parents; both should be held responsible for raising the children they decided to create together.
Custody cases like these are a good reason for making gay marriage legal in all 50 states and making sure that laws are written to reflect the way that people are actually living their lives and creating families.
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