In a groundbreaking decision earlier this month, a sharply divided Florida Supreme Court concluded that a woman who donated her eggs to her lesbian partner so that the couple could have, and raise, a child together possesses a fundamental constitutional right to parent the child. In the process, the court declared unconstitutional a statute that created an automatic waiver of the parental rights of all reproductive material donors, concluding that the statute, as applied to the lesbian egg donor, violated her Due Process rights.
The case involved the custody of the daughter of a lesbian couple. In 2003, the couple set about to have a child. They used one partner’s egg, but the other partner carried and delivered the child. The couple gave birth to the daughter in January 2004. Two years later, though, the relationship failed and the birth mother cut off all contact in December 2007.
The other partner, known in the court documents as “T.M.H.,” filed a legal action to establish her parental rights to the daughter. The birth mother challenged the action, arguing that Florida law afforded T.M.H. no parental rights and that, by signing an “informed consent” form, T.M.H. had surrendered all parental rights. The trial court ruled in favor of the birth mother, but the 5th District Court of Appeal reversed, concluding that the Florida Statute governing donated reproductive material was unconstitutional as applied to T.M.H.
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