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Florida Court Recognizes Parental Rights for Same-Sex Partner

Even laws that seem gender neutral can be difficult to apply in nontraditional situations. When this occurs, it often falls to the courts to make these laws work. One example is the way many courts had to adapt traditional notions of “parentage” to apply to children conceived by in vitro fertilization or other advanced methods. These scientific advances have complicated a question that is fundamental to every child custody or support proceeding: “Who are the parents?”

In November 2013, the Florida Supreme Court had the opportunity to consider the question of parentage in a case involving a lesbian couple who had been acting as the parents of a child born in 2004 prior to splitting up in 2006. One partner had donated an egg cell for implantation in the other partner, who carried and birthed the child. The question before the court was whether the donor partner had parental rights to the child, such as the right to seek custody or visitation. A sharply divided court ruled that she did:

  • Writing for the majority, Justice Barbara Pariente found that the donor partner had voluntarily assumed parental responsibilities, making her more than just a donor and bringing her outside the application of a 1993 law that severed legal connections between donors and the resulting children. The court recognized that constitutionally protected parent-child relationships can come in many forms.
  • In a dissenting opinion, Chief Justice Ricky Polston voiced concerns that the decision would curtail the birth mother’s legal rights and was in contravention of society’s history of protecting the “traditional family.”

Florida still does not recognize same-sex marriage or any type of family arrangement outside of conventional marriage. However, Florida family law attorneys should watch closely to see what broader ramifications this important ruling could eventually have, especially in the contexts of custody and support.

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