A lesbian mother who separated from her partner does not lose her parental rights to a child born during the relationship, a divided Florida Supreme Court ruled.

A lesbian mother who separated from her partner does not lose her parental rights to a child born during the relationship, a divided Florida Supreme Court ruled Thursday.

The 4-3 opinion strikes down the state law on assisted reproductive technology as unconstitutional and affirms a decision by the Fifth District Court of Appeal upholding parental rights for same-sex couples who jointly conceive a child.

The birth mother moved to Australia and cut access to the child born in 2004. The estranged partner whose fertilized egg was used in the pregnancy challenged the loss of rights and access in a state were same-sex marriage is barred.

Justices Barbara Pariente wrote for the majority in the closely watched dispute, which decided the case on federal equal protection and state privacy grounds. Chief Justice Ricky Polston and Justices R. Fred Lewis and Charles Canady dissented.

Pariente said the majority relied on “longstanding constitutional law that an unwed biological father has an inchoate interest that develops into a fundamental right to be a parent, protected by Florida and U.S. Constitutions, when he demonstrates a commitment to raising the child.”

The statute is unconstitutional as applied under due process clauses of the state and federal constitutions and the privacy provision of the Florida Constitution, Pariente said. The law also violates federal and state equal protection law “by denying same-sex couples the statutory protection against the automatic relinquishment of parental rights that it affords to heterosexual unmarried couples.”

Pariente said that the mother identified in court records only as D.M.T., who took the child to Australia, is not being denied her right to parent. The decision only requires that T.M.H.’s right to parent be recognized.

“D.M.T.’s preference that she parent the child alone is sadly similar to the views of all too many parents, who after separating prefer to exclude the other parent from the child’s life,” she wrote.

The birth mother defended severing the biological mother’s ties the circumstance by noting the biological mother signed a standard informed consent form at the clinic where the egg was donated.

The Fifth District rejected the birth mother’s argument that the biological mother waived her parental rights by signing that form because T.M.H. did not fall within the statutory definition of “donor.”

“It is clear that the very purpose of the biological mother’s provision of the egg to her partner was to enable each party to become parents of the child they wished to conceive,” Pariente said.

The parents were a couple from 1995 to 2006 and the birth mother delivered their child in January 2004.

Same-sex Rights

In Polston’s dissent, he relied on T.M.H.’s waiver and D.M.T.’s contention that she never acknowledged when the egg was donated that the two intended to co-parent.

Polston also argued the constitutional claims cited by the majority were never before the court because the biological mother did not properly raise or preserve them.

Addressing the state’s same-sex marriage ban in a footnote, he wrote, “Florida’s constitutional definition of marriage remains valid.” He said the state Defense of Marriage Act and the case were not affected by this year’s U.S. Supreme Court’s decisions on same-sex marriage.

On that subject, Pariente was more circumspect, writing, “The state constitutional provision against same-sex marriage is also not implicated” in the lesbian parenting case.

Christopher Carlyle and Shannon McLin Carlyle of the Carlyle Appellate Law Firm in The Villages argued the case for the biological mother.

“It’s an important and well-reasoned decision that recognizes the right of a parent to raise their child, despite that parent’s sexual orientation or regardless the manner in which the child was conceived,” Christopher Carlyle said. He noted there also was a dissent at the Fifth District, adding, “I understand people can disagree on difficult issues.”

Shannon McLin Carlyle commended Pariente for her recognition that gay and lesbian parents have just as much right to raise their children as heterosexuals.

The case was distinct both for its approach to the subject of same-sex rights and parental rights involving conception by artificial means.

“If our client was an unmarried male and contributed to this child’s upbringing and bonded with this child, then the law would recognize he would have a constitutional right to raise this child,” Shannon Carlyle said. “But because this parent was female, before this opinion came out there was no such recognition.”

Miami Beach attorney Elizabeth Schwartz, a gay and lesbian advocate, said justice was done.

“This opinion reflects the shifting tide toward honoring the bonds created among LGBT couples and families,” she said. “The fact that this came out the same day the Senate passed the Employment Nondiscrimination Act is no coincidence. Progress is unstoppable.”

Michael B. Jones of the Wheelock Law Firm in Orlando represented the birth mother. He was unavailable for comment by deadline.