Biological Mom Kept From Child in Lesbian Legal Case

Jan. 5, 2012— -- Tina's biological daughter turned 8 this week, but she has not seen the girl since Dec. 22, 2008, because of a custody fight with her former lesbian partner. The partner is unrelated to the child, but gave birth to her.

"I thought I'd have her back on her birthday," said Tina, a law enforcement officer, whose name was never on the birth certificate and who has been denied parenting rights under Florida state law.

For 11 years, the Brevard County couple forged a committed relationship, living together, sharing their finances and raising a daughter. Tina's egg was fertilized with donor sperm and implanted in her partner's womb.

But when their romance fell apart when the child was 2, the Florida courts had to decide, who is the legal parent, the biological mother or the birth mother who carried the child for nine months in her womb?

A trial court summarily sided with Tina's ex-partner, citing Florida statute. "The judge said, 'It breaks my heart, but this is the law,'" according to the birth mother's lawyer, Robert J. Wheelock of Orlando.

But on Dec. 23, a state appeals court rejected the law as antiquated and recognized both women as legal parents.

Citing the case as "unique," the 5th District Court of Appeal ruled that both the U.S. and Florida constitutions trump Florida's law, according to the Orlando Sentinel, which first reported the story.

"I am elated and I am thankful," said Tina, now 41. "I am hoping things will run smoothly from this [point] forward, but it may not be the case. She is appealing and trying to keep me away from my daughter."

Court papers identify both women only by their initials. ABCNews.com is withholding Tina's last name to protect her privacy.

Wheeler has asked for a stay of Tina's rights and said the case will surely go to the Florida Supreme Court and, he hopes, all the way to the U.S. Supreme Court.

"I made a decision to have a child and raise her, not so someone else could keep her away from me," said Tina. "I want to see her grow and be a part of her life. The longer time passes the more I am missing out."

Wheelock would give no personal details about the birth mother, including where she is living with the child. He said she could not be available to talk to ABCNews.com on "such short notice."

The case, he said, is an important one.

"Anything to do with gay rights is a big deal," said Wheelock. "It will probably raise the level of conversation significantly for the next few years."

But he said the case, which has lingered for two years, will take time. "Nothing is that quick or easy," he said.

"The real person who is being affected is the kid, who has had a very stable life for a long time and now it's thrown in the mix here, a pawn in some grander scheme," said Wheelock. "There is a human side to this."

The plight of both women and their young daughter highlights the murky laws that surround same-sex families, particularly in states like Florida that do not recognize gay marriage. The state only legalized second-parent adoption last year, too late for Tina.

"I was told to see a counselor and I should have gone to a lawyer to get surrogacy paperwork so that I didn't give her all the rights when she shares no biology with her," she said.

The Brevard County women, who worked on the same police force, lived as a married couple, according to Tina's lawyer, Robert A. Segal of Melbourne.

"They couldn't solemnize the relationship, but they had been living together, owned property together, shared bank accounts and income," he said. "They held themselves up to the world as a committed couple."

"It's a moral, ethical and legal issue," said Segal. "The court sees it as a clear intent on the part of these parties to very deliberately bring a child into the world and to raise her together."

Gay advocacy groups hailed the appellate decision giving both mothers parenting rights, but warned that because many states do not recognize same-sex relationships, children are often the victims.

"Certainly a mother, like most parents, would go to the ends of the earth not to lose her relationship with the child," said Beth Littrell, an attorney in the southern regional office of Lambda Legal.

But the law provides no distinction between biological and birth mother and has "not caught up with science or the state of same-sex marriages," ruled the appellate court.

"It's heartbreaking when they have no recourse," Littrell said. "And all kinds of harm can be created for the child with these ambiguous laws."

When Tina and her partner decided to have a child, the birth mother was 39 and infertile. Her egg was harvested and fertilized with by sperm from an anonymous donor, who relinquished his rights to the child.

When the child was born in 2004, the women hyphenated their names as the child's last name.

"They did everything that a very happy family does, but the relationship broke down," said Segal.