In a case of first impression for Florida, the 5th District Court of Appeal ruled on December 23, 2011, that a child born through in vitro fertilization using an ovum from its birth mother's same-sex partner, is legally the child of both women. T.M.H. v. D.M.T., 2011 Westlaw 6437247. Reversing a decision by Brevard County Circuit Judge Charles Crawford, the 2-1 appellate ruling concluded that failing to recognize the plaintiff's parental rights would violate the U.S. and Florida constitutions.
According to the decision for the 5th District Court of Appeal by Judge Thomas D. Sawaya, the parties lived in a "committed relationship" from 1995 until 2006, having cohabited and purchased real property together and having maintained a joint bank account and shared living expenses. They decided to have a child to raise together and sought "reproductive medical assistance," with the plan being that D.M.T. would bear the child via donor insemination. But it turned out that D.M.T. was infertile; she was not producing fertile ova, but she was capable of having a child through in vitro fertilization. T.M.H. contributed her ova, which were fertilized in vitro with donated sperm, and an embryo was successfully implanted in D.M.T., who bore their daughter in Brevard County on January 4, 2004. Although only D.M.T. was listed as a parent on the birth certificate, they gave the child a hyphenated last name and confirmatory genetic testing showed that she is T.M.H.'s genetic offspring to 99% certainty. They sent out birth announcements stating "We proudly Announce the Birth of Our Beautiful Daughter," and proceeded to arise the child together.
However, the women separated in May 2006, the child remaining in the physical custody of D.M.T. with T.M.H. making support payments. Then they reached an agreement to have the infant spend equal time with each of them, so T.M.H. stopped making support payments but continued to share educational costs. The relationship between the women deteriorated after the separation. On December 22, 2007, D.M.T. quit her job and disappeared with the child. "Eventually," wrote Judge Sawaya, "Appellant located them in Queensland, Australia," and the legal battle began.
D.M.T. didn't dispute any of T.M.H.'s factual allegations concerning the conception and early years of their child, arguing instead that as the birth mother she had the sole legal right to be the mother of the child. She rested her argument heavily on Florida Statutes Section 742.14, which provides that "The donor of any egg, sperm, or preembryo, other than the commissioning couple or a father who has executed a preplanned adoption agreement…, shall relinquish all maternal or paternal rights and obligations with respect to the donation or the resulting children." Thus, she argued, as an egg "donor," T.M.H. had "relinquished" any parental rights she might have.
The trial judge reluctantly agreed with D.M.T. Finding that "same-sex partners do not meet the definition of commissioning couple," he concluded that there "is no protection for [T.M.H.] under Florida law because she could not have adopted this child to prevent this current set of circumstances." (At the time, and still today, there was a provision of Florida law banning adoption of children by "homosexuals." This was declared unconstitutional in 2010 by the 3rd District Court of Appeal in a case that the state decided not to appeal, but the statute remains on the books and was certainly in effect during the time between the child's birth and her mothers' separation.) Although Judge Segal stated his disagreement with "the current state of the law," he asserted that "I must uphold it. I believe the law is not caught up with science nor the state of same-sex marriages. I do think that is on the horizon." And he also stated to T.M.H. on the record, "If you appeal this, I hope I'm wrong."
A majority of the court of appeal decided that Judge Segal was wrong.
First, the court held that the particular statute upon which the trial court's decision was based just did not apply to the situation. In order for it to apply, T.M.H. would have to be a "donor" as the word is used in the statute. The word is not specifically defined in the statute, but to the majority of the court, it was clear from the context and the purpose of the statute that "donor" did not correctly characterize the status of T.M.H.
The court took its lead from a California Supreme Court decision construing similar statutory language, K.M. v. E.G., 117 P.3d 673 (Cal. 2005), in which that court held that a woman who provides ova to her lesbian partner so they can have a child to raise together is not a "donor" within the meaning of the statute. A donor is somebody who gives up her eggs so that another person or couple can have a child, with no intention that the donor will be a parent to the child.
Second, the court found that if the statute was construed to apply to this set of facts, it would be violating the constitutional rights of T.M.H. Judge Sawaya wrote, "It is well established that the rights to procreate and to parent one's child are fundamental rights under both the Florida Constitution and the United States Constitution," which means that any statute abridging that right is presumed unconstitutional unless it can be justified by a compelling state interest. In this case, of course, the state is not a party, so the burden would fall on D.M.T., the defendant, to prove that her interpretation of the statute was justified by a compelling state interest, and the court found that D.M.T. had utterly failed to suggest any such interest.
The court also rejected the suggestion that the statutory ban on gay adoption had anything to do with this case, stating "we do not discern any legislative intent that the prohibitions of that statute apply to deprive either woman of parental rights to a child conceived through the reproductive process employed here, and we can find no prohibition to lesbian women utilizing that process to conceive a child." And, of course, the court noted that the statute had been declared unconstitutional in 2010. The court also found to be irrelevant other provisions of state law governing vital statistics and birth certificates, as not intended to deal with issues of legal parental status.
T.M.H. had also relied on a form that D.M.T. signed prior to her ova being extracted for the in vitro fertilization process. The clinic where the procedure was done gave her a standard form to sign that incorporated the language of the statutory provision about donors relinquishing their parental rights. Rejecting the relevance of this form, Judge Sawaya wrote that "the purported waiver provisions clearly state that they only apply to a 'donor' who has 'relinquished any claim to, or jurisdiction over the offspring that might result from this donation' and who 'understands that the recipient may regard the donated eggs as her own and any offspring resulting therefrom as her own children.'" But, as the court had already held, T.M.H. was not a "donor" in the sense that the term is used, either in the statute or in this consent form.
T.M.H. had also submitted an affidavit from the doctor whose clinic performed the procedure. He said that the form was the standard form he has all patients sign, and that he considered the provision in question to be inapplicable to these parties, as they had indicated their intention to raise the child together. The court noted that courts in other jurisdictions had also held such waiver language to be inapplicable in similar cases.
Finally, the court rejected D.M.T.'s argument that a child can't have two mothers. "Parental rights, which include the love and affection an individual has for his or her child, transcend the relationship between two consenting adults, and we see nothing in this record that make either Appellant or Appellee an exception that places those rights in one to the exclusion of the other," wrote Sawaya. "It is unknown what caused these two women to cross the proverbial line between love and hate, but that is a matter between Appellant and Appellee. Their separation does not dissolve the parental rights of either woman to the child, nor does it dissolve the love and affection either has for the child."
In a concurring opinion, Judge David A. Monaco agreed with Judge Sawaya's construction of the "donor" statute and its inapplicability to this case. He suggested that there was a "contract" between the women implied in the circumstances. "But for the fact that the appellant and the appellee are of the same sex," he wrote, "we would probably consider them to be a 'commissioning couple' under the statute, and the outcome of this case would be easy. What is ironic is that the appellant, who provided the ovum that resulted in the birth of the child (her probablity of parenthood was measured at greater than 99%), and who actually helped in the financial support and upbringing of this child in accordance with her agreement with the birth mother, should be excluded from contact with the child because she is not a 'parent.' It seems to me that she is."
Judge Monaco also questioned, if the situation was reversed "and the biological mother had run off with the child, would we exclude the birth mother from contact, even though she contributed very little to the genetic makeup of the child? I think that result would be equally as absurd. The fact is the birth mother under the present fact scenario is a parent as well."
Judge Monaco saw the case as being of historic dimensions in the law. "We have arrived at a judicial event horizon," he wrote. "We need legislation to guide us in dealing with the cases that will in the future come before the courts of this state as a result of the combination of the societal changes that we have all witnessed in the years since the relevant statutes were adopted and the still evolving science concerned with human fertility." He stated his agreement with the dissenting judge that this situation "begs for legislation," but obviously disagreed that in the absence of legislation specifically addressing the situation, the court should fall back on antiquated common law rules. He also bemoaned the fact that due to the procedural posture of the case, a pre-trial motion to dismiss, there was no evidence before the court about the "best interest of the child," which ultimately is supposed to govern the court's resolution of any custody dispute between legal parents.
Finally, there is a lengthy dissenting opinion by Judge C. Alan Lawson, who disagreed with the way the court interpreted the "donor" statute and also asserted that under established common law principles only the birth mother of a child could be considered its legal mother. That is, in his view, a child can have only one legal mother, unless the legislature overrides the common law with a statute specifically addressing the situation. Lawson insisted that the court could avoid having to reach any constitutional determination (which he insisted was improper in light of the minimal attention paid to the issue at the trial level) by construing the statute according to its plain meaning and treating T.M.H. as a "donor" who had agreed to relinquish any parental claim to a child conceived from her ovum through in vitro fertilization.
The majority decision concluded by reversing Judge Crawford's grant of summary judgment and remanding the case for a trial on issues of custody, visitation and child support, to be determined based on an evidentiary record as to the "best interest of the child."
At the same time, however, the court decided "to certify to the Florida Supreme Court the following question as a matter of great public importance: Does application of section 742.14 to deprive parental rights to a lesbian woman who provided her ova to her lesbian partner so both women could have a child to raise together as equal parental partners and who did parent the child for several years after its birth render the statute unconstitutional under the Equal Protection and Privacy clauses of the Federal and State Constitutions?"
Presumably the court certified the question in light of the lack of unanimity on the panel and to ensure that an urgent question of first impression receive a definitive answer, at least under state law, regardless whether D.M.T. seeks to appeal this ruling. Anything the Florida Supreme Court might say about Federal constitutional law would not necessarily be the final word, of course.