Florida law has long been clear that when heterosexual parents split up, neither parent loses his or her rights. Now a narrow majority of the Florida Supreme Court has come to the enlightened conclusion that similar protections must apply as well to same-sex couples who share children. The ruling is another enlightened strike against discrimination and a reminder that state law has not yet evolved to match the reality of modern families or the myriad scenarios by which technology allows them to expand.
The 4-3 opinion issued Thursday centers on a law that attempts to define parental rights when it comes to the egg and sperm donations used by infertility specialists to help prospective parents conceive a child. Under Florida law, it's clear that anonymous egg and sperm donors who sign away their parental rights at the time of donation cannot later claim they have a parental right to the child.
But in the Brevard County case before the court, a woman who now lives in Australia has been trying to use the law to justify denying her former partner access to a child they had together. The woman in Australia, who was infertile, had the child after being implanted with her partner's donated egg. The couple used their joint bank accounts to pay for the treatment, and they gave the child a hyphenated last name and began raising the child together.
Yet, just like the case with so many heterosexual couples, the relationship didn't last. A few years after the child's 2004 birth, the woman who delivered the child took the child to Australia. The other woman hired a private detective and eventually filed a petition asserting her parental rights — which eventually triggered this week's ruling.
Fundamental to the court's decision: There would be no question of parental rights if this was a heterosexual couple with the same set of facts regarding both biology and the assumption of parental responsibility. That means the law, as applied by a trial court in this case, was unconstitutional under the due process and equal protection clauses of the U.S. and Florida constitutions. The justices remanded the case back to trial court to determine a child custody agreement that includes both women.
That is progress, and it comes just three years after a state appeals court struck down an arcane state system that allowed gay individuals to serve as foster parents but not adopt a child. There were echoes of that decision here, as the court noted in its ruling: "We conclude that the State would be hard pressed to find why a child would not be better off having two loving parents in her life, regardless of whether those parents were of the same sex, than she would be having only one."
Indeed. For all the progress reflected in this opinion, it is a sober reminder that too many adults, regardless of their sexual orientation, put their animosity toward a former partner above the best interests of their child. In this case, the Florida Supreme Court found in the interest of the child but also in the interest of equal rights. That is the right call.