In a landmark decision in the matter of D.M.T. v. T.M.H., the Florida Supreme Court ruled that a woman who donated her fertilized egg to her partner, who in turn gave birth to a child, has a right to parent the child.
Last year I summarized the facts of this case when it was going through the Fifth District Court of Appeals of Florida:
Two women are in a committed lesbian relationship when they decide to have a child together using reproductive technologies. One woman (the “Genetic Mother”) supplies the egg and has it fertilized. That egg is then implanted into her partner (the “Birth Mother”) who gives birth in 2004.
The child is given a hyphenated last name, combining the names of the Birth Mother and Genetic Mother. Birth announcements are sent out, proclaiming both partners to be mothers of the child. The partners reside with one another and the child in Florida, and they all live happily ever after.
Until 2006, when the Birth Mother and Genetic Mother break up.
Eventually, the Birth Mother skips town with the child and refuses to provide any information regarding the child.
The Genetic Mother finally locates the Birth Mother with the child in Australia. The Genetic Mother files suit in Florida and requests that the court establish her parental rights, including custody rights and the ability to make major decisions concerning the child’s best interests.
The trial court dismissed the Genetic Mother’s petition, citing the current state of Florida law gives no rights to the Genetic Mother and indicating that it hoped its ruling would be overturned.
The Fifth District Court of Appeals did overturn the trial court, and the Birth Mother appealed that decision to the Florida Supreme Court.
The Florida Supreme Court upheld most of the Fifth District’s ruling. It determined that Florida’s reproductive technology statute (section 742.14) is unconstitutional:
(1) as a violation of the Due Process Clause of the United States Constitution and separately as a violation of the Due Process Clause and privacy provision of the Florida Constitution; and (2) as a violation of the federal Equal Protection Clause and separately as a violation of the Florida Equal Protection Clause. 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.
Using the unwed father analogy, the Florida Supreme Court determined that an unwed mother donating her genetic material to her lesbian partner has a fundamental right to parent the child if that was the intent of the partners and the unwed mother demonstrates a commitment to raising the child.
Further, the court determined that the statute violated the Equal Protection Clause of the United States and Florida Constitutions because the statute had safeguards for unmarried heterosexual couples against automatically relinquishing their parental rights using reproductive technologies, but did not afford same sex couples that same protection. The Supreme Court ruled that the state had no legitimate purpose for making a distinction between unwed heterosexual couples and unwed gay and lesbian partners.