Ruling on a question of first impression for Florida, the state’s Supreme Court split 4-3, finding that a lesbian co-parent who had donated an egg that was fertilized in vitro and implanted in her same-sex partner, could seek custody of the resulting child whom she had parented for the first two years of the child’s life before the couple’s relationship ended. The court approved a ruling by the 5th District Court of Appeal that a Florida statute that would by its terms block this result would be unconstitutional as applied to this situation, although the court disagreed with the 5th District’s conclusion that the statute didn’t even apply to the case because the co-parent did not intend to “give away” her egg as a “donor.” The dissent argued that the constitutional issues were not properly before the court and that the co-parent had waived her rights by signing a form consent agreement at the time the in vitro insemination procedure was performed.
The case, D.M.T. v. T.M.H., 2013 Fla. LEXIS 2422, 2013 WL 5942278 (Nov. 7, 2013), achieved a fair degree of notoriety, as the birth mother absconded with the child to Australia and had to be tracked down by detectives in order to serve her with the co-parent’s complaint to initiate the lawsuit.
According to the opinion for the court by Justice Barbara J. Pariente, the parties were “involved in a committed relationship from 1995 until 2006,” living together, acquiring real estate together, and maintaining joint financial accounts. They decided to have a baby, and after determining that D.M.T. could not produce an egg, they resorted to in vitro fertilization, using an egg harvested from T.M.H. to inseminate from a sperm donor, to be gestated by D.M.T. They raised their daughter together for two years until the relationship broke down and they separated in May 2006, after which the child lived with D.M.T. under a time-sharing agreement with T.M.H. After the relationship of the women deteriorated further, D.M.T. disappeared with the child, and was subsequently traced by detectives to Australia.
T.M.H., described by the court as “the biological mother,” filed a petition to establish her parental rights and seek custody. D.M.T., described as “the birth mother,” moved for summary judgment, relying on a Florida statute that provides that an egg or sperm donor relinquishes all parental rights, “other than the commissioning couple or a father who has executed a preplanned adoption agreement.” “Commissioning couple” is defined as the intended mother and father of a child.” The trial court agreed with D.M.T. that the statute compelled granting her summary judgment, but commented, “I do not agree with the current state of the law, but I must uphold it. And, if you appeal this, I hope I’m wrong.”
T.M.H. appealed, and the 5th District Court of Appeal reversed, finding first that the statute did not even apply, because the court did not consider T.M.H. to be a “donor.” Finding that the parties had intended to raise the child together, the court of appeal concluded that T.M.H. was not “giving away” her egg. And, alternatively, if the statute were to apply, the court of appeal ruled that this would violate T.M.H.’s constitutional rights, as the biological and intended parent of the child.
This time D.M.T. appealed. The Florida Supreme Court majority disagreed with the 5th District’s holding that T.M.H. was not a “donor,” but otherwise affirmed the court’s ruling on constitutional grounds. The court found that the right to procreate is a “fundamental right” under the Florida and U.S. Constitutions. “Therefore,” wrote Justice Pariente, “the burden falls on the birth mother to demonstrate that application of the assisted reproductive technology statute to deprive the biological mother of her fundamental right to be a parent furthers a compelling governmental interest through the least intrusive means. This showing has not been made.”
The court recognized that the statute’s purpose was to protect “couples seeking to use assisted reproductive technology to conceive a child from parental rights claims brought by typical third-party providers of the genetic material used in assisted reproductive technology, as well as the State’s corresponding interest in furthering that objective. This case, however, does not implicate those concerns. Quite simply, based on the factual situation before us, we do not discern even a legitimate State interest in applying [the statute] to deny T.M.H. her right to be a parent to our daughter.” The court emphasized that T.M.H.’s rights in this case did not turn solely on her status as a biological mother, but depended also on the parental role she assumed upon the birth of her daughter, thus distinguishing this from a case where an egg or sperm donor who does not form a relationship with a child suddenly surfaces years later trying to assert parental status.
The court also ruled on an alternative argument of equal protection. “Sexual orientation has not been determined to constitute a protected class and therefore sexual orientation does not provide an independent basis for using heightened scrutiny to review State action that results in unequal treatment of homosexuals,” wrote Pariente,” explaining why the court would apply “a rational basis analysis” to T.M.H.’s equality claim. “The specific question we confront is whether the classification between heterosexual and same-sex couples drawn by the [statute] bears some rational relationship to a legitimate state purpose.” D.M.T. relied in part on the Florida Marriage Amendment, which forbids same-sex couples from marrying or having their marriage recognized, to support her argument against T.M.H.’s claim, but the court held that the amendment was irrelevant, since the “commissioning couple” definition in the statute did not require that the intended father and mother be married to each other, unlike a companion statute on gestational surrogacy which limited that procedure to use on behalf of married couples. The court also rejected D.M.T.’s claim that “recognizing T.M.H.’s parental rights in this case would undermine the State interest in providing certainty to couples using assisted reproductive technology to become parents because it would increase litigation regarding the intentions of individuals providing genetic material.” The court pointed out that the statute clearly contemplates litigation about whether an unmarried different-sex couple might be considered a “commissioning couple” under the statute, which would require a factual determination of intent.
“We conclude,” wrote Pariente, “that the State does not have a legitimate interest in precluding same-sex couples from being given the same opportunity as heterosexual couples to demonstrate that intent. Consistent with equal protection, a same-sex couple must be afforded the equivalent chance as a heterosexual couple to establish their intentions in suing assisted reproductive technology to conceive a child.” Additionally, the court noted a ruling by the 3rd District Court of Appeal in Adoption of X.X.G. which had declared unconstitutional the state’s statutory ban “against a homosexual adopting child” as “lacking a rational basis,” mentioning with apparent agreement that court’s finding “that gay people and heterosexuals make equally good parents.” Then-Governor Charlie Crist had decided not to appeal the X.X.G. decision and instead to comply with the court’s order, so the Supreme Court had never issued a definitive ruling on the constitutionality of the statute. This pronouncement by a majority of the court appears to approve of that ruling, at least by implication.
The court rejected D.M.T.’s argument that the standard consent form that T.M.H. signed at the clinic for the in vitro procedure would serve to waive her rights, asserting that “courts that have considered similar standard informed consents used in reproductive technology have held that waiver provisions like the one referenced by the Fifth District are inapplicable in circumstances like those in this case. This is because it is uncontested that the biological mother was not an anonymous donor, but rather, that the parties were in a committed relationship where reproductive technology was used – with one woman providing her egg and the other partner bearing the child – so that both women became the child’s parents. . . Accordingly, the informed consent form signed by the biological mother has nothing to do with a release of parental rights where she was not an anonymous donor, but rather, was a full-fledged partner in the conception and raising of the child.”
Having determined that T.M.H. is a legal parent of the child, the Supreme Court sent the case back to the trial court “to determine, based on the best interests of the child, issues such as parental time-sharing and child support.”
The dissenting opinion, written by Chief Justice Ricky Polston, contested just about every point of the majority decision, arguing that the constitutional issues had not been asserted at the trial level and thus were not preserved for consideration on appeal, that D.M.T. contested T.M.H.’s allegation that the women had intended to raise the child together, and that the statute clearly applied to block T.M.H.’s claim. The political line-up of the justices is interesting. Of the four in the majority, two were appointed by Democratic Governor Lawton Chiles and two by Republican Governer Charlie Crist; of the three dissenters, one was appointed by Chiles and two by Crist.
Many amicus briefs were filed with court, mainly in support of T.M.H., including briefs from the ACLU LGBT Rights Project and the ACLU of Florida, Lambda Legal, and the National Center for Lesbian Rights. Michael B. Jones of Orlando, Florida, represented T.M.H. Christopher V. Carlyle and Shannon McLin Carlyle of The Villages, Florida, and Robert A. Segal of Melbourne, Florida, represented D.M.T.