Florida Supreme Court Upholds Same-Sex Partner’s Right to Co-Parent Child After Couple Splits

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.

The Florida Supreme Court agreed. Section 742.14 of the Florida Statutes states that egg donors relinquish all parental rights to the children conceived from their eggs. The Supreme Court concluded, however, that applying this language to T.M.H. would improperly create an “automatic statutory relinquishment of her ‘right to form a parental relationship with her child’.” In this woman’s case, she was not merely an egg donor; she one-half of a couple who desired to have a child that they would raise together and each wished to have a biological link to the child. T.M.H.’s right to maintain her parental relationship with the daughter “is a fundamental right deserving of constitutional protection under the Due Process Clauses of the Florida and United States Constitutions,” the four-member majority ruled.

The court also determined that the informed consent form did not create a waiver of her rights. The majority pointed out that T.M.H. signed the document as D.M.T.’s partner, not as an egg donor and, at all points, the couple indicated an intent to have the child, and raise the child, together.

Three justices dissented. They concluded that T.M.H. signed two forms that knowingly and voluntarily waived her rights to any children born from her donated eggs, and the court should have upheld these waivers. The dissent also disagreed with the majority’s Due Process reasoning, stating that invoking the Due Process Clause requires a fundamental right that is “rooted in history and tradition.” The dissent determined that a lesbian who donated her eggs to her now ex-partner did not have the sort of historical and traditional right, but rather history and tradition recognized the autonomy of birth mothers. By invoking the Due Process Clause in favor of T.M.H., the majority improperly impaired the birth mother’s fundamental right to parent her child as she saw fit, the dissent asserted.

This case has substantial implications for same-sex couples seeking to have a child together, and may have additional impact with regard to other children conceived by assisted reproduction. If you are in a custody dispute involving a child conceived by assisted reproduction, you should be sure you know your rights under Florida law. To obtain knowledgeable and skillful representation, consult the South Florida family law attorneys of Sandy T. Fox, P.A. They have been assisting people throughout the Fort Lauderdale and Miami-Dade area for years and can give you thoughtful advice based upon the latest changes to Florida law. Contact us online or by calling (800) 596-0579 to schedule your confidential consultation.

More Blog Posts:

Three Parents? Florida Judge Allows Biological Father on Birth Certificate with Lesbian Parents, Fort Lauderdale Divorce Lawyer Blog, Feb. 19, 2013
U.S. Supreme Court Challenge to Same-Sex Marriage Ban May Affect Florida Residents, Fort Lauderdale Divorce Lawyer Blog, Dec. 21, 2012