Child custody battle between same-sex couple questions notion of motherhood
Bio mom's egg was artificially inseminated and implanted in birth mom.
Who has parental rights?
Who gets the kid?
Side Score: 2
Side Score: 4
Call me crazy, but I don't think anyone has special rights over another human being just because they share 50% of their DNA. Motherhood is more than simply being the biologically related, it's about loving and nurturing a child, with all the benefits and responsibilities that it entails.
Side: Birth mom
I agree, but it sounds like both birth mom and bio mom were prepared and planned to do that, and perhaps would have done that, except that birth mom effectively "kidnapped" the kid and hightailed it off to Australia. As a practical matter, birth mom did do more parenting than bio mom, but again that's because birth mom ran off with the kid and bio mom didn't have the opportunity to act as a parent. There's no indication that bio mom would not have also loved and nurtured the child if she'd had the chance to do so. So while I agree with your principle, I don't think it answers the question of who should have parental rights in this situation.
Side: Bio mom
Okay. The issues that I spot here are as follows:
1. Is bio mom a "donor," like a sperm donor? (And if so, does that equal no parental rights?)
2. Is birth mom a "surrogate"? (And if so, does that equal no parental rights?)
3. Does it matter that Florida doesn't recognize same-sex marriages or civil unions?
4. Can't they both be mommies anyway?
5. What's best for the kid?
So, in order:
1. Is bio mom a "donor"? Probably not. I didn't find a clear definition of the term under Florida law -- and I'm guessing the trial judge didn't either, or the inquiry would have ended there, and there wouldn't be any news controversy. The relevant law is at Florida Statutes 742.13 and 742.14, which states that absent a preplanned adoption agreement, a donor other than a member of a "commissioning couple" gives up all parental rights; and defines a "commissioning couple" as "the intended mother and father of a child who will be conceived by means of assisted reproductive technology using the eggs or sperm of at least one of the intended parents." Since the definition of a "commissioning couple" refers to mother and father, and "donor" is not defined, it's really not clear how (if at all) this statute would apply, and it's not at all clear that bio mom should be ruled to have given up any possible "parental rights." Nor is it clear that she hasn't given up parental rights -- or that she ever had any parental rights at all. So, not much guidance from the statutory language.
But . . . since it appears from the news articles I scanned that these two women intended to conceive and bear a child using the egg of Woman 1 and the womb of Woman 2, with the intent to raise this child together as co-parents, and then the two women had a break-up -- the thing they look most like is a "commissioning couple" (even though they don't quite meet the legal definition, 'cause they're both ladies), so I'm going to agree with the trial judge and say nope, bio mom is not a donor. So, no real help from Florida law there.
2. Is birth mom a "surrogate"? Probably not, because Florida surrogacy law has a lot of lengthy provisions that require a pre-existing surrogacy contract that can only be entered into if a bunch of other conditions are met, and there's no evidence of that. So no help from Florida's surrogacy law on this one.
3. Does it matter that Florida doesn't recognize same-sex marriages? The trial dissent seemed to think so, but I think not. If the two women are not donor or surrogate, but are instead two women who intended to co-parent, and their relationship isn't recognized under Florida law, then the situation is most like a child born out-of-wedlock. That doesn't really inform a "baby has two mommies" decision either way. So no help from Florida's marriage laws.
4. Can't they both be mommies anyway? Under current Florida law, it looks like the answer is no. Florida Statute 63.032 says that "'Parent' means a woman who gives birth to a child or a man whose consent to the adoption of the child would be required under [other relevant statute] . . . If a child has been legally adopted, the term 'parent' means the adoptive mother or father of the child." (emphasis added). These two ladies don't appear to have completed a legal adoption that would identify them both as mommies, so current law in Florida favors the position that birth mom is a "parent" while bio mom is not.
5. What's best for the kid? This is always supposed to be a major concern (if not the major concern) of the court in a custody decision. Like most states, Florida has a whole bunch of criteria that the court is supposed to consider in determining what's best for the kid and who should be awarded custody in the more common mom-vs.-dad scenario. There's a presumption that joint custody is best for the kid, but it refers to "both parents," which leads back into the question of whether both birth mom and bio mom can be "parents." It seems like it would be in the best interests of the child to apply the usual custody criteria in this situation, just as would be done in a mom-vs.-dad situation. First, though, bio mom is going to have to establish that she should be acknowledged as a "parent," and she's not getting much help there from Florida law.
Side: Birth mom