In any reasonable situation, one parent cannot simply take a child to a foreign country and deny visitation rights to the other parent. Gay and lesbian parents don’t always get the same rights as their same-sex counterparts, however, as was demonstrated in Florida when a trial court denied rights to a woman in exactly that situation.
But the Florida Supreme Court overturned this ruling on Thursday, granting parental rights to the mother left behind.
The case involves two women, known only as DMT and TMH, who used assisted reproductive technology to have a baby. TMH had her egg fertilized and placed into DMH’s uterus.
When the couple broke up after an 11-year relationship, DMT headed to Australia with the child. When TMH petitioned the court for parental rights, she was denied because Florida laws do not recognize a same-sex partnership as a "commissioning couple."
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The Florida Supreme Court disagreed, saying that the current statute is not constitutionally sound.
Justice Barbara Pariente wrote, "In reaching our conclusion, we rely on long-standing constitutional law that an unwed biological father has an inchoate interest that develops into a fundamental right to be a parent protected by the Florida and United States Constitutions when he demonstrates a commitment to raising the child by assuming parental responsibilities."
Still, TMH only won the case with a majority of 4 to 3. Chief Justice Ricky Polston wrote for the dissenters, saying, "Does this mean that a child could have a constitutional right to two mothers and a father (or two fathers), perhaps when a married, heterosexual couple agrees to and subsequently raises a child with the egg donor, an egg donor who is in a committed relationship with a man other than the genetic father?"
Although TMH’s victory is momentous for the gay-rights movement, her battle is not over yet. She must now deal with the local court system to establish visitation rights.