Florida Supreme Court Recognizes Parental Rights of Same-Sex Couples Who Use Assisted Reproductive Technologies

By Jacek Stramski

In a landmark 4-3 opinion relating to same-sex parental rights in Florida issued today in D.M.T. v. T.M.H. (SC12-261), the Supreme Court invalidated sections 742.13 and 742.14, Fla. Stat., to the extent that they do not protect the parental rights of same sex parents who use assisted reproductive technology. The facts of the case, from a previous FlascBlog entry, are as follows:
The parties were involved in a committed lesbian relationship from 1995 to 2006. After deciding to raise a child together, an egg from T.M.H. was fertilized and implanted into D.M.T., who gave birth in 2004. The procedure was paid for with joint funds. In 2006, the couple separated, and the child stayed with D.M.T., who received child support payments from T.M.H. Eventually D.M.T. moved with the child to Queensland, Australia, where she was served with a lawsuit by T.M.H., who was seeking to establish parental rights.
D.M.T successfully argued at the trial court that Florida law does not recognize the parental rights of egg donors in same-sex relationships, relying largely on section 742.14, Florida Statutes. That section provides in pertinent part that anyone who donates genetic material to another relinquishes any parental rights and obligations for any resulting child, unless such a donation is by either the intended mother or father from a mixed-sex “commissioning couple”. As the exception on its face would not apply to T.M.H., the trial court held that she relinquished her parental rights upon the “donation” of her egg to D.M.T.
An appeal to the Fifth District Court of Appeal followed, which held that the law providing for a relinquishment of parental rights did not apply to this couple because there was no donative intent on the part of T.M.H., that is to say, she was not a donor under the statute. A fuller synopsis of the Fifth DCA’s opinion is available at our previous article related to this case, located here.
In today’s opinion, the Supreme Court rejected the Fifth DCA’s analysis which focused on donative intent, and found that subjective analysis to be incompatible with the statute as it contains an exemption from relinquishment of parental rights for heterosexual commissioning couples who have a similar lack of “donative intent” but are nevertheless exempted from the relinquishment provision. Instead, the Court considered the exclusion of same-sex couples from the definition of “commissioning couple” as violating the federal and state Due Process Clauses and the state privacy clause, and as violating the state and federal Equal Protection Clauses.
“It would indeed be anomalous if, under Florida law, an unwed biological father would have more constitutionally protected rights to parent a child after a one night stand than an unwed biological mother who, with a committed partner and as part of a loving relationship, planned for the birth of a child and remains committed to supporting and raising her own daughter.” So noted the Court when it pointed out that the right to be a parent is a fundamental right of a person who, as T.M.H in this case, is a biological parent and has indicated an intent to assume the duties and responsibilities of parenthood. The Court stated that, while restrictions on fundamental rights require strict constitutional scrutiny (i.e. must be necessary to achieve a compelling government interest) to pass muster, the Court could not “discern even a legitimate State interest in applying section 742.14 to deny T.M.H. her right to be a parent to her daughter.” (Op. at 30).
The Court next analyzed the argument that the statutes violate the federal and state equal protection clauses by exempting commissioning heterosexual couples, but not homosexual couples, from the relinquishment provision. The Court noted that under the state constitution, sexual orientation is not a protected class, and that therefore law discriminating on the basis of sexual orientation are only subject to the deferential rational basis review, which holds that statutes are valid as long as they bear a rational relationship to a legitimate state purpose.
The Court held that the statutes could not meet even this permissive standard. The Court rejected the notion that the statutes protect parental rights of mixed sex couples or that they extend parental rights to same-sex couples, as the statutes do not deal with the granting of parental rights, but rather their relinquishment. Secondly, no protection of marriage argument was implicated by the statutes, as the exemption for “commissioning couples” was not restricted to married couples. The Court next pointed out that excluding same-sex couples from the definition of “commissioning couple” did not serve to provide certainty to couples who use assisted reproductive technology merely by excluding homosexual couples from the definition, and that in any case there was no rational argument to suggest why the child at issue here would be better off with one parent as opposed to two.
Finally, the Court concluded that the standard donor waiver signed by T.M.H. did not waive parental rights to a child she helped conceive and intended to raise as her own. The Court remanded the case back to the trial court to determine the parental regime based on the best interests of the child.