Biological Mom Kept From Child in Lesbian Legal Case

ABC News
Biological Mom Kept From Child in Lesbian Legal Case
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Biological Mom Kept From Child in Lesbian Legal Case (ABC News)

Tina's biological daughter turned 8 this week, but she has not seen the girl since Dec. 22, 2008, because of a custody fight with her former lesbian partner. The partner is unrelated to the child, but gave birth to her.

"I thought I'd have her back on her birthday," said Tina, a law enforcement officer, whose name was never on the birth certificate and who has been denied parenting rights under Florida state law.

For 11 years, the Brevard County couple forged a committed relationship, living together, sharing their finances and raising a daughter. Tina's egg was fertilized with donor sperm and implanted in her partner's womb.

But when their romance fell apart when the child was 2, the Florida courts had to decide, who is the legal parent, the biological mother or the birth mother who carried the unrelated child for nine months in her womb?

A trial court summarily sided with Tina's ex-partner, citing Florida statute. "The judge said, 'It breaks my heart, but this is the law,'" according to the birth mother's lawyer, Robert J. Wheelock of Orlando.

But on Dec. 23, a state appeals court rejected the law as antiquated and recognized both women as legal parents.

Citing the case as "unique," the 5th District Court of Appeal ruled that both the U.S. and Florida constitutions trump Florida's law, according to the Orlando Sentinel, which first reported the story.

"I am elated and I am thankful," said Tina, now 41. "I am hoping things will run smoothly from this [point] forward, but it may not be the case. She is appealing and trying to keep me away from my daughter."

Court papers identify both women only by their initials. ABCNews.com is withholding Tina's last name to protect her privacy.

Wheeler has asked for a stay of Tina's rights and said the case will surely go to the Florida Supreme Court and, he hopes, all the way to the U.S. Supreme Court.

"I made a decision to have a child and raise her, not so someone else could keep her away from me," said Tina. "I want to see her grow and be a part of her life. The longer time passes the more I am missing out."

Wheelock would give no personal details about the birth mother, including where she is living with the child. He said she could not be available to talk to ABCNews.com on "such short notice."

The case, he said, is an important one.

"Anything to do with gay rights is a big deal," said Wheelock. "It will probably raise the level of conversation significantly for the next few years."

But he said the case, which has lingered for two years, will take time. "Nothing is that quick or easy," he said.

"The real person who is being affected is the kid, who has had a very stable life for a long time and now it's thrown in the mix here, a pawn in some grander scheme," said Wheelock. "There is a human side to this."

The plight of both women and their young daughter highlights the murky laws that surround same-sex families, particularly in states like Florida that do not recognize gay marriage. The state only legalized second-parent adoption last year, too late for Tina.

"I was told to see a counselor and I should have gone to a lawyer to get surrogacy paperwork so that didn't give her all the rights when she shares no biology with her," she said.

The Brevard County couple, who worked on the same police force, lived as a married couple, according to Tina's lawyer, Robert A. Segal of Melbourne.

"They couldn't solemnize the relationship, but they had been living together, owned property together, shared bank accounts and income," he said. "They held themselves up to the world as a committed couple."

"It's a moral, ethical and legal issue," said Segal. "The court sees it as a clear intent on the part of these parties to very deliberately bring a child into the world and to raise her together."

Gay advocacy groups hailed the appellate decision giving both mothers parenting rights, but warned that because many states do not recognize same-sex relationships, children are often the victims.

"Certainly a mother, like most parents, would go to the ends of the earth not to lose her relationship with the child," said Beth Littrell, an attorney in the southern regional office of LAMBDA Legal.

The law provides no distinction between biological and birth mother and has "not caught up with science or the state of same-sex marriages," ruled the appellate court.

"It's heartbreaking when they have no recourse," Littrell said. "And all kinds of harm can be created for the child with these ambiguous laws."

When Tina and her partner decided to have a child, the birth mother was 39 and infertile. Her egg was harvested and fertilized with by sperm from an anonymous donor, who relinquished his rights to the child.

When the child was born in 2004, the women hyphenated their names as the child's last name.

"They did everything that a very happy family does, but the relationship broke down," said Segal.

Lesbian Couple Were at First Amicable

Tina's lawyer said that the birth mother had turned "mean" after an amicable separation. "It happens a lot in divorcing couples," said Segal.

He said his client had been painted as a "donor mother," which was far from the truth.

"That is not a term that has legal sense to it," Segal said. "She was not giving [her eggs] with no strings attached and relinquishing rights. That wasn't happening here. She intended to be part of the child's life."

At first, the biological mother paid child support to her ex-partner and the couple worked out a time-share arrangement with their daughter, who had moved with her birth mother back with family in North Carolina.

But at some point, the birth mother decided to go to Australia for an educational law enforcement program, taking the child with her and not telling her ex-partner.

"Letters were returned by the birth mother's mother and she got tight-lipped," said Segal. "We started piecing things together and bringing in an investigator from Australia."

Tina and her lawyer filed a petition at the trial level asking to be declared a legal mother with parental rights. She also challenged the constitutionality of Florida law.

"The bottom line was, we wanted her to be a legal parent and given enforceable legal rights," said Segal.

The appeals court sent the case back to circuit court to determine visitation, custody and child support arrangement with an emphasis on the well-being of their daughter.

Two other similar court cases in New York City and California are also raising national attention.

"It does appear to be a trend where courts are looking at the intention of the parties to decide who the legal parents are, and that has applications for [couples] who plan to have a child and create that child through artificial insemination and to raise that child, even if the relationship goes awry," said LAMBDA Legal's Littrell.

"It was a great decision for this family and for each of the parents with the child at the center of the controversy," she said. "The language and the reasoning the court employed bode well for same-sex couples across the board."

As for Tina, she is now living with a new partner and has another child and one on the way. She said her legal fight has been expensive, but "all worth it if I can get her back."

"Shame on me," said Tina that she didn't understand the legal complexities that would be involved. "I did not know that I would not be on the birth certificate, that I would not have any legal right to my biological child."

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