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Sunday, July 14, 2024 | Back issues
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Florida Reproductive Law Found Unfair to Lesbian

(CN) - A woman who used assisted reproductive technology to have a baby with her partner should not have been denied parental rights, the split Florida Supreme Court ruled.

DMT and TMH, as they are named in the court record, were in a relationship when they decided to have a baby using assisted reproducive technology. TMH provided the egg, and DMT gave birth to the child.

The couple's 11-year relationship deteriorated, however, and DMT took the child away to Australia. When the child was 4, TMH petitioned the court to establish her parental rights and resume her role as one of the child's parents.

DMT argued that she alone has the parental rights to the child.

While condemning DMT's actions as "morally reprehensible," the trial court took her side because it found that the statute governing assisted reproductive technology did not recognize a same-sex couple as a "commissioning couple."

The Fifth District Florida Court of Appeals reversed, however, ruling that TMH's constitutional right to be a parent to the child was violated.

A four-justice majority of the Florida Supreme Court agreed Thursday that Florida's assisted reproductive technology statute violated the Florida and U.S. constitutions.

"In reaching our conclusion, we rely on long-standing constitutional law that an unwed biological father has an inchoate interest that develops into a fundamental right to be a parent protected by the Florida and United States Constitutions when he demonstrates a commitment to raising the child by assuming parental responsibilities," Justice Barbara Pariente wrote for the court.

The wording of the statute "also violates state and federal equal protection 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," Pariente added.

"It would indeed be anomalous if, under Florida law, an unwed biological father would have more constitutionally protected rights to parent a child after a one-night stand than an unwed biological mother who, with a committed partner and as part of a loving relationship, planned for the birth of a child and remains committed to supporting and raising her own daughter," she continued.

In addition, Pariente noted that the court decision did not deny DMT's parental rights.

"DMT's preference that she parent the child alone is sadly similar to the views of all too many parents who, after separating, prefer to exclude the other parent from the child's life," she wrote.

In remanding the case to the trial court for a determination of time-sharing and child support, Pariente noted that "an all-or-nothing choice between the two parents is not necessary."

Chief Justice Ricky Polston wrote the dissenting opinion, joined by two colleagues.

"TMH signed at the time of her egg donation two waivers of all claims and rights she might have regarding any resulting child," Polston wrote..

DMT also showed that her rights as the child's parent bar TMH's claims for parental rights and visitation, according to the dissent.

The majority's opinion lacks a "obvious stopping point," Polston wrote.

"Does this mean that a child could have a constitutional right to two mothers and a father (or two fathers), perhaps when a married, heterosexual couple agrees to and subsequently raises a child with the egg donor, an egg donor who is in a committed relationship with a man other than the genetic father?" he asked (parentheses in original).

Orlando Weekly wrote that the decision "could be a precedent for marriage equality" in Florida.

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