A custody battle between two lesbians may raise multiple issues of first impression for Florida courts. The couple decided to conceive a child after nine years together. One woman donated the egg to be fertilized, and it was then implanted into the other woman, who later gave birth to a baby girl. The relationship ended two years later. The birth mother then left the country with the child, only to be found with the help of a private investigator hired by the other mom.

The case raises a multitude of different legal issues because of the relationship between the women, and what genetic material they have contributed. For example, laws are generally not favorable to sperm or egg donors, because lawmakers generally want to avoid scenarios created when you leave the custodial determinations up to emotional attachment after conception and birth.

The trial court judge ruled, albeit while voicing some discontent, that the biological mother in the case has no parental rights under state law. The court of appeal ruled that both women had parental rights. While the case is before the Florida Supreme Court, it is unclear whether they will hear the case.

In addition to the rights of the mother as egg donor, are the questions regarding the constitutional right to procreate's reaches in terms of procreation in a lab setting, the constitutional rights of gay parents, and another court of appeals decision finding the ban on gays being able to adopt as unconstitutional.

If the Florida Supreme Court does decide to hear the case, I wonder whether they will address the mother's rights as an egg donor per se, or rather focus on her role as the partner in the case. What is interesting is that in some cases it is the surrogate that is hired to carry a baby to term that has to sign over their rights, although obviously a contractual agreement to have a baby for a distinct family unit is not at issue here. Reproductive rights law is interesting in that it focuses these emotionally charged and legally distinct areas of the law into one bundle of inseparable issues. The outcome of each depends on the others.

 

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