In its decision, D.M.T. v. T.M.H., Fla., No. SC12-261 (Nov. 7, 2013), the Florida Court held that applying the assisted reproductive technology statute to deny a woman from asserting parental rights when she donated ova to her same-sex partner is unconstitutional and a violation of her due process, privacy, and equal protection rights.
D.M.T. and T.M.H. enjoyed a long-term relationship and agreed to have a child together. T.M.H. provided the egg and, with donor sperm, the fertilized ovum was implanted in D.M.T. The child was born in 2004, but the parties separated in 2006. After D.M.T. severed contact between their child and T.M.H., .T.M.H. brought a court action to establish her parental rights.
The trial court denied T.M.H.’s action, finding she relinquished any claim to parental rights or obligation under Florida’s assisted reproductive technology statute. The appellate court reversed, finding the statute did not apply to T.M.H. because she did not intend to give her ova away, and thus was not a “donor”. The Florida Supreme Court agreed that T.M.H. was not a “donor” but disagreed with the appellate court because the statute in its face did, in fact, apply to T.M.H.
The Florida statute identifies two categories of “donor” individuals who do not relinquish parental rights: commissioning couples (the child conceived uses the biological material of at least one of them); and fathers with executed pre-planned adoption agreements.
The Court analogized her interest to that of an unmarried biological father, “whose parental rights are inchoate but develop into a fundamental right when [he] demonstrates ‘a full commitment to the responsibilities of parenthood’.” Here, T.M.H. assumed full parental responsibilities until D.M.T. severed her contact with the child. Therefore, this decision may result in unmarried same-sex couples being treated as a “commissioning couple” under Florida’s assisted reproductive technology statute.
To read the Florida Supreme Court decision, please visit: http://www.floridasupremecourt.org/decisions/2013/sc12-261.pdf
To read the Florida Statute, please visit: http://www.flsenate.gov/Laws/Statutes/2012/742.14