The 5th District Court of Appeals has ruled that in the case of two women from Florida who have now split but during their time together had a child, with one woman donating the egg and the other woman carrying the baby to term, both women have a parental claim over their daughter.

The ruling is significant because it firmly states that both the US Constitution and the Florida Constitution trump state laws that give only the mother who carried the baby to term parental rights.

From the Los Angeles Times:

The 5th District Court of Appeal ruled that the U.S. and Florida constitutions trump Florida law and give parenting rights to both women. State law, it added, has not kept up with the times.

“This is a unique case, and the appellate courts in Florida have never before considered a case quite like it,” it said.

Although growing numbers of families have two parents who are the same sex, few involve children whose chromosomes come from one woman but who were carried to term by another.

Still, it’s an important decision with a wider implication, said Nancy Polikoff, a law professor at American University Washington College of Law and expert on gay-and-lesbian family law.

“Any ruling that supports the right of a same-sex couple … is important for its willingness to recognize that these families exist and a child raised in this environment shouldn’t be forced to give up a parent,” she said.

The couple in question were in a committed relationship spanning 11 years. During that time they decided to have a child together. However, one of the couple, a 39-year-old law enforcement officer, found out that she was infertile.

The other woman in the relationship, then 34 and also a law enforcement officer, donated an egg for fertilization. It was then implanted in her partner’s womb. The first week in 2004 saw them blessed with the arrival of a baby girl.

While the father was an anonymous sperm donor who had waved his rights, the two women found that they were only allowed to put the name of the mother who carried the child to term on the birth certificate.

Despite this, they shared parental duties and the little girl grew up firm in the knowledge she had two mothers. This continued even after the couple unfortunately split when the girl was 2.

Things went bad, however, when a year and a half later the woman who had carried the child to term disappeared with the girl, taking her out of the country. She had not informed her former partner.

Eventually she was tracked down in Queensland, Australia, and has since returned to Florida.

The couple went to court with the woman who had carried the child to term claiming that her former partner had no claim over the child because she was not on the birth certificate and was not recognized under Florida state law.

A circuit judge in Brevard County, noting his disquiet over the decision, confirmed that under Florida law a woman who gives birth is presumed the mother and because the law had not been changed to accomodate the more diverse circumstances of today’s couples, he had no choice but to rule that indeed only the birth mother had a parental claim.

However, a state appeals court in Daytona Beach overturned that decision, saying that the woman who donated the egg should also have a claim to the child. The case was appealed further.

The 5th District Court of Appeals then handed down a decision on Dec. 23 of last year saying that the woman who donated the egg to her partner indeed does have parental rights under the Florida Constitution and the U.S. Constitution. In that decision the court reportedly asked the Florida Supreme Court to decide a very salient and narrow legal issue for state law: Does a woman in a lesbian relationship who donates an egg to her partner have absolutely no legal claim to that child?

The court also ordered the case back to the trial judge, instructing that the egg-donor mother be given access to her daughter, and that the issues of custody, visitation and child-support should be sorted out there with, the appeals court noted, an emphasis on the child’s well-being.

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