In November, the Florida Supreme Court issued a decision addressing the parental rights of two women who conceived a child through assisted reproductive technology. The case, DMT v. TMH involved two women who were in a long-term relationship when they decided to conceive a child. To do so, TMH (the "Biological Mother") provided an egg which was carried by DMT (the "Birth Mother") following fertilization through to birth. After the child was born, the couple raised the child together until problems arose and they separated. Following the separation, the Birth Mother "absconded to an undisclosed location with the child ..." Opinion at *3.
The Biological Mother eventually located the Birth Mother in Australia wherein she served her with a petition to establish parental rights. The Biological Mother also sought a declaration of statutory invalidity regarding Florida Statute 742.14, Florida's assisted reproductive technology statute (the "ART Statute"). Under the ART Statute, an egg or sperm donor must relinquish any claim to parental rights or obligations to the donation or resulting child. The statute makes an exception for a "commissioning couple," which it defines as the intended mother and father of a child who will be conceived through assisted reproductive technology.
At trial, the Circuit Court judge found that the Birth Mother and Biological Mother, as a same-sex couple, could not meet the ART Statute's definition of a "commissioning couple." As the trial judge recognized at the time, "[t]here really is no protection for [the Biological Mother] under Florida law because she could not have adopted this child to prevent this current set of circumstances. I do not agree with the current state of the law, but I must uphold it. ..." The Biological Mother appealed to the Fifth District Court of Appeal, which reversed the trial court, instead finding that the trial court's interpretation and application of the statute violated the biological mother's constitutional rights. The Fifth District went on to hold that the Biological Mother is "entitled to constitutionally protected parental rights to the child and that the statutory relinquishment of those rights under section 742.12 is prohibited by the Federal and Florida Constitutions."
The Fifth District certified a question "of great public importance" to the Florida Supreme Court regarding the constitutionality of the ART Statute. The Supreme Court found the statute unconstitutional as a violation of the Due Process Clause and the Equal Protection Clause of both the Florida and United States Constitutions. The Supreme Court provided a thorough analysis for why it found the statute unconstitutional. However, the Court's primary basis for its ruling centered on "long-standing constitutional law that an unwed biological father has an inchoate interest that develops into a fundamental right to be a parent ... when he demonstrates a commitment to raising the child by assuming parental responsibilities." Opinion at *2.
The Court reasoned that Florida's ART Statute violates the Florida and United States Constitution's Equal Protection Clause "by denying same-sex couples the statutory protection against the automatic relinquishment of parental rights that it affords to heterosexual unmarried couples seeking to utilize the identical assistance of reproductive technology." Id. The Court when on to state that "[o]ur decision does not deny [the Birth Mother] the right to be a parent to her child, but requires only that [the Biological Mother's] right to be a parent of the child be constitutionally recognized." Id.
Through its decision, Florida's Supreme Court recognizes that same sex parents have parental rights. Still, the Supreme Court noted that its decision was "based on the circumstances of this case ..." The Court found it significant that the Biological Mother had assumed full parental responsibilities until the Birth Mother took the child away from her. Opinion at *9. The Court analogized the situation to a heterosexual couple. There, "an unmarried man who impregnates an unmarried woman does not automatically have a fundamental right to be a parent to the child, his right to be a parent develops substantial constitutional protection as a fundamental right if he assumes responsibility for the care and raising of the child." Id., citing In re Adoption of Baby EAW, 658 So. 2d 961, 966 (Fla. 1995). There was no disputing that both the Biological and Birth Mothers had assumed responsibility for the care and raising of the child. For the Court, the ART Statute presented a "substantial equal protection problem" to deny an unwed mother the right to assert parental rights, yet allow an unwed father to assert those same rights under the ART Statute. Opinion at *10.
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