Issuing its opinion in DMT vs. TMH, a closely watched case that drew national attention, the Supreme Court of Florida today declared that a woman has constitutionally protected rights to raise a child created by artificial insemination using her ovum, with the fertilized ovum carried and the child born by her then-committed partner, and initially raised by the woman and her former partner. Justice Pariente wrote the opinion for the Court, with Justice Polston writing a dissenting opinion in which two other justices joined.
The facts are these. DMT and TMH were in a committed lesbian relationship for about 11 years. They decided to have a child by in vitro fertilization, using TMH’s ova fertilized by donated sperm, with the fertilized ova implanted in DMT. DMT gave birth to the child and DMT and TMH raised the child together as equal parents, initially in the home they shared. DMT and TMH, who could not marry in Florida, split up about 17 months after the child was born. They initially continued to co-parent the child after the split, agreeing that the child would divide time between their homes. But things turned nasty, and DMT ran away with the child and denied TMH any contact with the child.
TMH finally found DMT in Australia. She sued DMT to establish her right to co-parent the child. The problem for TMH was that section 742.14, Florida Statutes, which deals with surrogacy, extinguishes the parental rights of egg and sperm donors to children created from their donated genetic material. The trial court found that section 742.14 was controlling, and ruled in favor of DMT, despite stating that DMT’s actions were morally reprehensible and against the interests of the child.
The Fifth District Court of Appeal (in Daytona Beach, which hears appeals from portions of central and northern Florida) reversed the trial court, holding that section 742.14 did not apply, finding TMH was not a “donor” under the statute because she did not intend to give her ova away (i.e. to “donate” it), but rather always intended to raise any child that resulted from her egg, even though she wouldn’t be carrying and giving birth to the child.
The majority of the Florida Supreme Court rejected that interpretation. It held that section 742.14 did apply, because whether someone is considered a “donor” under the statute doesn’t depend on what her intentions were, but rather only on whether she gave genetic material. That conclusion was compelled by statutory language as well as practical considerations. If intentions matter, then any sperm or egg donor could say that he/she didn’t really intend to give up the child, and thus avoid the effect of the statute, which aims to prevent drawn out custody battles over children created from donated eggs and/or sperm.
But the the majority agreed with the 5th DCA’s result, based on a more monumental, and potentially farther reaching, basis. They found that the statute was unconstitutional as applied to the circumstances in DMT, in that TMH not only contributed genetic material, but also took on the responsibility for raising the child after it was born. Thus, her situation was analogous to an unmarried father of a child, which courts have held has inchoate parental rights that become constitutionally protected if the father takes on the responsibilities of raising the child.
Denying parental rights to an individual in TMH’s circumstances, the majority held, violates the Due Process, Privacy, and Equal Protection clauses of the Florida Constitution, as well as the Due Process and Equal Protection clauses of the United States Constitution.
Not surprisingly, the United States Supreme Court’s decision in United States v. Windsor, 133 S. Ct. 2675 (2013), in which the Court declared Title II of the Defense of Marriage Act to be unconstitutional by denying Equal Protection to gay married couples, figured prominently in the Florida Supreme Court’s constitutional analysis in DMT.
But the Court also based its decision on the Florida Constitution (in addition to the United States Constitution), and was careful to point out that its finding that the Florida Constitution was violated was “separate” from its finding that the United States Constitution was violated. In doing so, the Court likely insulated its decision from further review by the United Supreme Court. The Florida Supreme Court has the last word in interpreting the provisions of the Florida Constitution, and the United States Supreme Court generally does not involve itself in cases in which there is an independent state law basis for the decision, even if federal issues are also decided.
The Court further insulated its decision from review by the United States Supreme Court by grounding its decision on the Privacy clause in the Florida Constitution, which has been held to provide broader protection of privacy rights, including parental rights, than is provided by the United States Constitution. (Unlike the Florida Constitution, the U.S. Constitution does not have an explicit privacy clause, although privacy is addressed in the context of searches and seizures, and has been held to be implied by the Due Process clause.) So the Florida Supreme Court’s interpretation of the United States Constitution (as well as of the Florida Constitution) as protecting the parental rights of women in TMH’s position is likely to stand.