A bitter child custody dispute between two lesbians went before the Florida Supreme Court today, but the justices suggested the case may be sent back to a lower court and lawyers on both sides said it is unlikely to affect other couples, gay or straight.
Before the Brevard County couple split up, the genetic mother had donated an egg that was fertilized and implanted in the other woman, who gave birth in 2004. The couple separated two years later, and a trial court granted sole custody to the birth mother. An appellate court disagreed and said the women should share custody.
The lawsuit was filed before another appellate court struck down a Florida law banning same-sex couples from adopting. The state declined to appeal that 2010 decision.
If the Brevard couple had been able to adopt their daughter, both women would have retained parental rights when they broke up and the present case would have been unnecessary, said Robert Segal, the genetic mother’s lawyer.
“It’s a very narrow, limited legal issue,” said Michael Jones, the birth mother’s attorney.
Both women are identified in court records only by their initials to protect the privacy of the child, now 8 years old. She is living with her birth mother, identified as DMT, and hasn’t seen her genetic mother, TMH, in five years, Segal said.
The justices raised the possibility of returning the case to the trial court to resolve a potential factual dispute over a doctor’s informed consent form that was signed by the genetic mother. The form says she was giving up all rights to the donated egg and any resulting offspring.
Segal disagreed, saying the form was not a legal contract because it was signed by only one of the partners and intended for anonymous genetic donors, not people who planned to participate in raising the offspring.
“The form is patently inconsistent with their conduct,” Segal said.
Justice R. Fred Lewis said the case may need to return to the trial judge to hear evidence on the form issue.
“We can’t determine the facts,” Lewis said.