Florida Court Finds Child Has Two Moms

BY ARTHUR S. LEONARD | Ruling on December 23, a Florida appeals court, deciding an issue for which no state precedent existed, found 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.

Reversing a decision by Brevard County Circuit Judge Charles Crawford, the 2-1 appellate ruling concluded that failing to recognize the parental rights of the partner who donated her ova to the other woman would violate the US and Florida Constitutions.

According Judge Thomas D. Sawaya’s opinion for the appeals court, the women, whom he identified only by their initials, lived in a “committed relationship” from 1995 until 2006, during which time they sought “reproductive medical assistance” to enable D.M.T. to bear a child via donor insemination. D.M.T. proved to be infertile, but she was capable of having a child through in vitro fertilization. T.M.H., her partner, contributed her ova, which were fertilized in vitro with donated sperm, and D.M.T. gave birth to their daughter in January 2004.

Though only D.M.T. was listed as a parent on the birth certificate, they gave the child a hyphenated last name and genetic testing showed that, with 99 percent certainty, she is T.M.H.’s genetic offspring. The women raised the child together for more than two years.

After the women separated in May 2006, the child remained in D.M.T.’s custody, with T.M.H. making support payments. When they reached an agreement to share custody equally, T.M.H. stopped making support payments but continued to share educational costs. The relationship between the two mothers deteriorated and, in December 2007, D.M.T. quit her job and disappeared with the child. T.M.H. eventually located her daughter and ex-partner in Queensland, Australia, and the legal battle began.

D.M.T. didn’t dispute T.M.H.’s factual allegations concerning their child’s conception and early years, arguing instead that as the birth mother she had sole legal parental rights. Florida law provides that any egg, sperm, or preembryo donor “other than the commissioning couple or a father who has executed a preplanned adoption agreement… shall relinquish all maternal or paternal rights and obligation.” T.M.H., her ex-partner maintained, did not qualify under this statutory exception.

The trial judge reluctantly agreed with D.M.T., finding that “same-sex partners do not meet the definition of commissioning couple,” and 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.” (Florida, however, at the time banned adoption by “homosexuals.”) Judge Segal disagreed with “the current state of the law,” but asserted, “I must uphold it.” On the record, he told T.M.H., “If you appeal this, I hope I’m wrong.”

A majority of the appeals court of appeal decided he was wrong.

First, the court found that “donor” did not correctly characterize T.M.H.’s status. Taking the lead from a 2005 California Supreme Court ruling, the Florida court concluded a donor is somebody who gives up her eggs so that another person or couple can have a child with no intention of being the child’s parent.

The appeals panel also found that any law abridging T.M.H.’s “fundamental rights under both the Florida Constitution and the United States Constitution” to procreate and parent her child is presumed unconstitutional unless it can be justified by a compelling state interest. Since the state was not a party to the suit, that burden fell on D.M.T., who, the court found, utterly failed to suggest any such interest.

Florida’s ban on gay adoption was also irrelevant, since the panel found no “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.”

The court also noted that the statute had been declared unconstitutional in 2010, with the state taking no action to challenge that ruling.

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,” Judge Sawaya wrote.

In a concurring opinion, Judge David A. Monaco wrote, the panel, “but for the fact that the appellant and the appellee are of the same sex, would probably consider them to be a ‘commissioning couple’ under the statute, and the outcome of this case would be easy.”

Monaco saw the case in broad historical terms.

“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.” Though he shared the dissenting judge’s view that this situation “begs for legislation,” he disagreed that in the absence of legislation specifically addressing the situation, the court should fall back on antiquated common law rules.

Monaco also bemoaned the lack of evidence before the court about the “best interest of the child,” which ultimately is supposed to govern resolution of custody disputes.

In a lengthy dissent, Judge C. Alan Lawson 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. In his view, a child can have only one legal mother, unless the Legislature overrides common law with a statute saying otherwise.

The majority decision remanded the case for a trial on custody, visitation, and child support issues, to be determined based on the “best interest of the child.”

At the same time, however, the panel certified a question “of great public importance” to the Florida Supreme Court: “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 panel certified this question because of its split and to ensure that an urgent question on an issue without precedent receive a definitive answer, regardless whether D.M.T. seeks to appeal this ruling. Anything the Florida Supreme Court might say about federal constitutional law, however, would not necessarily be the final word.

 

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