As reported by the Orlando Sentinal, the 5th District Florida Court of Appeals has ruled that a birth mother must share custody of the child that was conceived with her lesbian partner’s eggs, and that Florida’ s laws relating to egg donation were unconstitutional as applied to the two women.

By way of background, the case involves a same-sex lesbian couple who had been in a committed relationship for 11 years, and who decided to conceive and to have a child together.  After learning that one of the women, a 39-year-old law-enforcement officer, was infertile, it was decided that the other woman, then 34 and also a law-enforcement officer, would donate her egg to be fertilized. The fertilized egg was then implanted in her partner’s womb, and a baby girl was born the first week of 2004.

Three and a half years later, and following the separation of the two women, the birth mother disappeared with the child, leaving the country without telling her former partner where they had gone.  Eventually the egg-donor mom tracked them down in Queensland, Australia.

The egg-donor/genetic mother brought a petition under Florida law asking the court to, among other things, declare that she was the legal mother of the child, grant her custody of the child, and order a corrected birth certificate identifying her as the parent.  Section 742.14 of Florida law – concerning the donation of eggs, sperm, or preembryos – reads in relevant part:

The donor of any egg, sperm, or preembryo, other than the commissioning couple or a father who has executed a preplanned adoption agreement [… ], shall relinquish all maternal or paternal rights and obligations with respect to the donation or the resulting children.

Applying existing Florida law, the trial court judge DENIED the genetic mother’s requests for parental recognition, writing:

Same-sex partners do not meet the definition of commissioning couple.  There really is no protection for [Appellant] 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.  I believe the law is not caught up with science nor the state of same-sex marriages.  I do think that is on the horizon.

The trial court judge acknowledged that family planning options were limited to the lesbian couple when they decided to have and raise a child together, including the option to get married and to establish parenthood by adoption.  The trial court judge wrote presciently, “If you appeal this, I hope I’m wrong.”  The genetic mother appealed.

On appeal, the 5th District Court of Appeals  in Florida did indeed reverse the lower court’s decision, holding that Florida’s existing interpretation and application of Section 742.14 to the genetic mother was unlawful and violated her rights under the Florida and United States constitutions.

In reaching its decision, the appeals court brushed aside the birth mother’s argument that the genetic mother was a “donor” under Section 742.14, and therefore had relinquished her parental rights.  After examining the factual record and noting that the statute did not specifically define “donor” , the judge wrote:

Based on the uncontradicted facts, [the genetic mother] would not be a donor under this definition because she did not intend to give her ova away.  Rather, she always intended to be a mother to the child born from her ova and was a mother to the child for several years after its birth. from her ova and was a mother to the child for several years after its birth.

The appeals court also disregarded the birth mother’s argument that Florida’s laws prohibiting adoption by same-sex couples barred recognition of parenthood by the genetic mother, stating:

[W]e do not discern any 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.

In its opinion, the 5th District Appeals Judge requested that the Florida Supreme Court decide a narrow constitutional question:  whether a woman in a lesbian relationship who gives her egg to her partner in order to have a child give up her parental rights to the child.

The Judge also sent the case back down to the trial court to make an appropriate order of custody, visitation, and support, but not before making an important philosophical comment on the court’s role in parenting cases:

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 makes either [birth mother] or [genetic mother] an exception that places those rights in one to the exclusion of the other.  It is unknown what caused these two women to cross the proverbial line between love and hate, but that is a matter between [birth mother] or [genetic mother].  Their separation does not dissolve the parental rights of either woman to the child, nor does it dissolve the love and affection either has for the child.

Read the appellate opinion of Judge Sawaya in the case of T.M.H v. D.M.T. in its entirety here:


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