In D.M.T. v. T.M.H, the Florida Supreme Court recognized for the first time that a child can have two legal mothers. The case involved a lesbian couple who decided to have a child by one partner (T.M.H.) providing fertilized ova to the other (D.M.T.), who carried and gave birth to the child and later, after the couple separated, contested her former partner's parental rights. The case is first and foremost important to the child at the center, who as a result of the decision will be able to have the continued love and support of both of her parents. It is also important to all Florida families formed by lesbian and gay couples; the case removes a legal barrier to their ability to create and protect parent-child relationships. In doing so, the court recognized that there is no rational basis for differential treatment of same-sex and different-sex parents, and that children benefit from having two loving parents in their lives regardless of the parents' genders.
D.M.T. and T.M.H. began their journey into parenthood with the intent that they would raise their child together. More than two years after the child was born, however, the women separated, and eventually D.M.T. severed the child's relationship with T.M.H., taking the child to Australia. T.M.H. eventually located D.M.T. in Australia and served her with a petition to establish parental rights.
Florida's statute addressing assisted reproductive technology, § 742.14, (ART statute) creates a general rule that an egg or sperm donor relinquishes all parental rights and obligations with respect to the resulting children, with two exceptions. The exception relevant to this case is that of a "commissioning couple," defined as "the intended mother and father of a child who will be conceived by means of assisted reproductive technology using the eggs or sperm of at least one of the intended parents." Because the child's parents were the intended mothers rather than "the intended mother and father," if applied to T.M.H. as written the statute would have prevented her from being recognized as the child's legal parent. The trial court applied the statute in that manner, saying "I do not agree with the current state of the law, but I must uphold it"; although the trial court found the birth mother's conduct to be "morally reprehensible," the court stated that same-sex partners did not fall under the "commissioner couple" exception in the ART statute.
T.M.H. appealed to the Fifth District Court of Appeals, which reversed in a 2-1 decision. The court found that the statute did not apply here because T.M.H. and D.M.T. intended to jointly raise the child so T.M.H. was not a "donor." The court also said the trial court's interpretation and application of the ART statute violated T.M.H.'s constitutional rights. The majority also rejected the argument that T.M.H. had nevertheless relinquished her parental rights by signing of a pre-printed informed consent form in the reproductive doctor's office.
On appeal from that decision, the Florida Supreme Court agreed with the constitutional analysis in the court of appeals opinion but rejected the relevant statutory analysis, finding that the ART statute did apply to T.M.H.'s situation but that that application was unconstitutional. The constitutional conclusions were premised on the due process and equal protection clauses of the Florida and US constitutions, along with the right to privacy under the Florida Constitution.
With respect to the privacy and due process analyses, the Florida Supreme Court found most meaningful the active participation of T.M.H. as a parent for the first two years of the child's life. Precedent had established that "a biological connection gives rise to an inchoate right to be parent that may develop into a protected fundamental constitutional right based on the actions of the parent," and here, T.M.H. had assumed full parental responsibilities, consistent with the intent of both women. Given that the common law would unquestionably provide a fundamental right to be a parent "to an unwed biological father in this situation who had the proverbial one night stand with a mother but then assumed parental responsibilities for the first several years of the child's life," the court said it would be anomalous to grant a father in that situation greater constitutional protection "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." Having found the fundamental right to parent to be implicated, the court said "we do not discern even a legitimate [s]tate interest in applying [the ART statute] to deny T.M.H. her right to be a parent to her daughter."
As for equal protection, the majority noted that "but for the fact that the biological mother and the birth mother are of the same sex, we would probably consider them to be a 'commissioning couple' under the statute, and the outcome of this case would be easy." Stating that sexual orientation "has not been determined to constitute a protected class," the court applied rational basis review, addressing the question "whether the classification between heterosexual and same-sex couples drawn by the [ART] statute bears some rational relationship to a legitimate state purpose." D.M.T.'s proffered basis was what she asserted was the state's "legitimate interest in not extending rights to same-sex couples." She first cited Florida law barring marriage for same-sex couples. The court rejected this argument, saying marriage ban is not implicated because there is no indication that the ART statute's "commissioning couple" exception applies only to married individuals. D.M.T. also cited a now defunct Florida statute that banned adoption by gay people. But as the court noted, that statute was held to be unconstitutional by the Third District Court of Appeal in Fla. Dep't of Children and Families v. Adoption of X.X.G. Concluding that "the [s]tate would be hard pressed to find a reason why a child would not be better off having two loving parents in her life, regardless of whether those parents are of the same sex, than she would by having only one parent," the court found the trial court's application of the statute to be unconstitutional because there was no rational basis to deny same-sex couples the protections afforded to opposite-sex couples under the ART statute.
Finally, the court rejected D.M.T.'s argument that T.M.H. waived any parental rights by signing an informed consent form as part of the ART process. The court stated that "the biological mother signed this form as the birth mother's partner and not as the individual providing the egg for the couple." Courts from other jurisdiction had held that waiver provisions in similar standard informed consent forms used in ART were inapplicable in circumstances like those in this case, and even the doctor who operated the reproductive center submitted an affidavit representing that the sole purpose of the form was to inform T.M.H. of the procedures, not to characterize the relationship of either party beyond that purpose. As such, the waiver provision was deemed inapplicable.
Having found T.M.H. had a constitutionally protected interest to parent her child, the court remanded the case to the trial court "to determine, based on the best interest of the child, issues such as parental time-sharing and child support." This is an enormous victory for one little girl. But it is also a major victory for all lesbian and gay parents and their children. With the opinion in X.X.G. striking down Florida's ban on adoption by lesbians and gay men, followed by this more recent decision from the Florida Supreme Court striking down the exclusion of same-sex couples from the protection of the ART statute, the barriers to formal equality for same-sex-parent families in Florida continue to fall. Although the decision was 4-3, there was not a hint from any of the seven justices that the gender of a child's parents provides any reason to deny those parents the ability to have a continued relationship with their child. This notable shift tracks a broader culture change in which more and more people are recognizing and opposing the harms that lack of formal equality brings to families formed by same-sex couples, and it is clear that it is only a matter of time before the remaining barriers fall as well.
Daniel Tilley is a staff attorney with the ACLU of Florida whose work focuses on the LGBT community. Daniel studied classical piano and German language and literature at New York University before returning to his home state for law school at the University of Georgia. During law school, Daniel received the Spurgeon Public Interest Fellowship, was a member of the Georgia Law Review and the Order of the Coif, and interned in Arusha, Tanzania at the U.N. International Criminal Tribunal for Rwanda. Before joining the ACLU, Daniel clerked in Atlanta at the U.S. District Court for the Northern District of Georgia and in Washington, D.C. at the U.S. Court of Appeals for the Armed Forces. While in D.C., he served on the D.C. Lawyer Chapter board of the American Constitution Society. Daniel is admitted to practice law in Florida, New York, and D.C.
Suggested citation: Daniel Tilley, D.M.T. v. T.M.H.: Breaking Down Barriers to Same-Sex Parenthood, JURIST - Sidebar, Jan. 3, 2014, http://jurist.org/sidebar/2014/01/daniel-tilley-florida-art.php.
This article was prepared for publication by Alexandra Cabonor, an associate editor with JURIST's professional commentary service. Please direct any questions or comments to her at email@example.com