TALLAHASSEE — Advocates say a recent state Supreme Court decision in a custody battle between same-sex parents is a step forward in advancing the cause of gay rights in Florida.
Florida’s highest court ruled Nov. 7 that a woman who donated an egg to her now-estranged lesbian partner has parental rights to the child. It ordered a lower court to decide arrangements for visitation and child support.
The ruling “fits into a context in which change is occurring,” said Nadine Smith, CEO of St. Petersburg-based Equality Florida, a lesbian, gay, bisexual and transgender advocacy group. “It actually lags behind public opinion.”
In 2008, almost 62 percent of Florida voters approved a constitutional ban on same-sex marriage and civil unions. But earlier this year, a poll by the nonpartisan Public Religion Research Institute showed a majority of Floridians — 54 percent — support same-sex marriage.
That poll showed a smaller majority of Americans — 52 percent — approve of gay marriage, with 42 percent opposed.
Even the state’s Supreme Court was divided in its opinion, 4-3, suggesting that much ground for acceptance of gay rights is yet to be gained.
Strides have been made: In 2010, another state appellate court overruled Florida’s 30-year-old ban on allowing gays to adopt. The Supreme Court referred to that case in its recent ruling.
The American Civil Liberties Union of Florida represented the plaintiff, Martin Gill, in the gay-adoption challenge and wrote a “friend-of-the-court” brief in the custody case.
The court’s decision “cements and builds upon the hard-fought victory for our client Martin Gill … and expands the legal rights and protections for (gay) parents,” said ACLU attorney Daniel Tilley, who specializes in gay rights.
Florida Senate Democrats now are advancing a package of civil rights bills for the 2014 legislative session, including protections for gays from housing, employment and banking discrimination.
Another measure would create a statewide domestic partnership registry, similar to one in Tampa. It would allow same-sex partners to make health care, child care, funeral and other decisions for each other.
“So long as one group can be singled out and denied the right to live their own lives in peace and dignity, the struggle for civil rights is not over,” said Sen. Arthenia Joyner, D-Tampa.
The U.S. Senate this month passed a landmark bill to outlaw workplace discrimination against gays, though it is unlikely to get through the Republican-majority House.
The measures also face an uphill slog in a Republican-dominated Legislature.
“Florida is a little anachronistic when it comes to gay rights and even some family law matters,” said Zanita E. Fenton, a University of Miami law professor. “But I’m sure everyone is watching this,” referring to the court’s ruling.
Still, as Smith said, “we’ve reached a point where the arguments (for gay rights) are logically unassailable.”
The Florida Supreme Court’s 4-3 majority decision began with a quote from the U.S. Supreme Court: “The intangible fibers that connect parent and child have infinite variety. They are woven throughout the fabric of our society, providing it with strength, beauty, and flexibility. It is self-evident that they are sufficiently vital to merit constitutional protection in appropriate cases.”
One partner donated an egg that was fertilized and implanted in the other. That woman gave birth in 2004, nine years into their relationship. The couple broke up two years later. The birth mother eventually left Florida with the child without telling her former lover.
A trial judge ruled the egg-donor mother has no parental rights under state law, though he said he hoped his decision would be overturned. In fact, an appeals court sided with the biological mother and said both women have parental rights.
The Supreme Court agreed, saying the egg-donor mother showed “a commitment to rais(e) the child by assuming parental responsibilities.”
“We cannot and should not lose sight of the fact that there is a child at the center of this dispute,” said Justice Barbara Pariente, who penned the majority decision. “… (A)n all-or-nothing choice between the two parents is not necessary.”
“I think this case does have far-reaching implications,” said Christopher Carlyle, a lawyer who represented the egg-donor mother. “It moves the ball forward in that fundamental rights of parenthood can arise in circumstances that were unimaginable 20 or 30 years ago.”
The dissent, however, said that granting parental rights to the egg-donor mother would interfere with the birth mother’s rights. Chief Justice Ricky Polston led the dissent.
“Our society has historically protected the legal rights of birth mothers and the traditional family,” he wrote.
Smith disagreed: “The connections between gay parents and their children, whether biological or because of parenting, are just as valid. This is an incredibly pro-family decision that ought to be hailed by the infinite variety of families that exist.”
But John Stemberger, president and general counsel of the conservative Florida Family Policy Council, called the ruling “a classic piece of judicial activism” and a “results-oriented decision.”
Florida “has an interest in regulating reproductive freedom and the social impact that that’s going to have,” Stemberger added. “The state has interests in stable and permanent homes, preserving the family unit and the well-being of children and they didn’t even see (those interests). ... It’s just bad law.”
Joseph S. Jackson, associate director of the University of Florida law school’s Center on Children and Families, helped write another friend-of-the-court brief in the custody case.
“The factual circumstances involved — one woman donating her egg to her partner to conceive a child — are somewhat unusual,” he said. “That said, the court’s opinion does have significant implications for other same-sex couples.”
The court said a 1993 law meant to regulate sperm and egg donation, relied upon by the birth mother to deny parenting rights to her ex-partner, couldn’t be applied in the case.
That law says donors “relinquish all maternal or paternal rights.” The supreme court said, despite the procedure used, both women intended to raise the child.
“That suggests that even where same-sex couples don’t utilize this same egg donation procedure, they would have the same right to use assisted reproduction as opposite-sex couples do to become legal parents,” Jackson said.