The facts in T.M.H. v. D.M.T. (SC12-216), as the Fifth District Court of Appeals (“DCA”) stated in its opinion below, 79 So.3d 787 (Fla. 5th DCA 2011), are not in dispute. 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.

The DCA’s opinion, which reversed the decision of the trial court on various grounds, presented interesting points that likely will be addressed by the Supreme Court on appeal.

First, the DCA rejected the argument that T.M.H. was a donor for the purpose of Section 742.14, Florida Statutes, holding that in this case there was no donative intent since the egg was transferred to D.M.T. for the purpose of the couple jointly raising a child. The DCA did not consider a waiver of parental rights signed by T.M.H as applicable for the same reason, namely that there was overwhelming evidence that the only motive behind the procedures was to allow the couple to raise their own child.

The DCA also held that as procreation is a fundamental right, the discrimination explicit in Section 742.14, Florida Statutes, would have to pass strict scrutiny or else run afoul of the Equal Protection Clause of the Fourteenth Amendment and the right to privacy protected by the federal and state constitutions. The DCA held that D.M.T. failed to demonstrate that the distinction in the statute was necessary to achieve a compelling state interest, and so the statute was unconstitutional as applied.

The dissent raised a number of counter points to the majority’s opinion.

The dissent charged the majority with rejecting the standard meaning of “donor” with respect to fertility treatments and of essentially rewriting the statute. To interpret the terms”donor” and “donation” in Section 742.14, Florida Statutes, as dependent on the intent of the parties one would have to address why there is an express exception in the statute for “commissioning couples”; if the statute is meant to be read as requiring a consideration of the donative intent of the source of an egg or sperm, the exception for “commissioning couples” is clearly redundant.

The dissent also challenged the constitutional analysis of the majority, arguing the no protected class is implicated, and that the fundamental right to procreate does not encompass access to assistive reproductive technologies. In the absence of a protected class being affected or fundamental rights being impinged, the dissent posited that Section 742.14, Florida Statutes, would only require a rational basis, a standard that statutes pass almost invariably.

The Supreme Court of Florida will be faced with a tough task in deciding this case, and will certainly be mindful that any discussion of the constitutional issues raised will have implications for gay marriage in this state. The Court’s options for deciding this case are as varied as the numerous arguments at issue. The simplest would be to avoid the constitutional issues altogether, and find that T.M.H. either did or did not meet the definition of “donor” under Section 742.14, Florida Statutes, based on her executed waiver or the undisputed intent behind the in vitro fertilization and implantation of the egg. Of course, all of the action is in the constitutional arguments.

The initial brief from D.M.T. is due by April 24. Keep an eye out for the brief on the Supreme Court’s docket here.

Scrambled Eggs or: Does Florida Law Allow a Child to Have Two Female Parents?

Leave a Reply

Your email address will not be published. Required fields are marked *