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Lesbian egg donor granted parental rights by Florida Supreme Court

11 November 2013
Appeared in BioNews 730

The Florida Supreme Court has recognised the parental rights of non-birth, biological mothers in same-sex relationships, under both the Florida and US constitutions. The Court declared Florida's Assisted Reproductive Technology Statute as unconstitutional for being contrary to the fundamental right to be a parent.

The case involved a dispute over the legal status of a non-birth parent, known as TMH, to a child born to a same-sex couple. TMH provided eggs for the couple and her partner, DMT, gave birth to the child.

The parents jointly raised the child until the couple split up, after which the birth mother left for Australia taking the child with her. The biological mother, TMH, then sought joint custody over the child, who is now nine years old.

The birth mother, DMT, sought to make use of a provision in Floridian law to be declared the child's sole legal parent. Florida's Assisted Reproductive Technology Statute excludes egg or sperm cell donors from acquiring parental rights in relation to the resulting child, except in the case of a commissioning couple - defined in law as the intended mother and father - engaged in fertility treatment and fathers who have executed a preplanned adoption agreement. Florida does not recognise same-sex marriages.

The trial court gave judgment in favour of DMT, explaining that it felt bound by law to do so as same-sex partners do not meet the definition of a commissioning couple. However, on appeal, the decision was reversed and the Supreme Court agreed. It held by a 4-3 majority that the statute's restricted definition of a 'commissioning couple' violated state and federal equality laws by denying same-sex couples the same level of protection that it affords to unmarried fathers using reproductive technologies.

Giving the majority opinion, Justice Barbara Pariente said: 'It is not the biological relationship per se, but rather the assumption of the parental responsibilities which is of constitutional significance'.

The Supreme Court sent to case back to the trial court to determine time sharing and child support, emphasising that an 'all-or-nothing choice between the two parents is not necessary'.

The Court prioritised the best interests of the child in such disputes. 'The state 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', Justice Pariente wrote.

The Court held that the parents in this case clearly intended to raise the child together. The Florida law will still apply to cases where anonymous donors provide sperm or eggs to couples. 'The law wasn't thrown out, it was just thoughtfully applied', said Elizabeth Schwartz, a Miami-based lawyer.

Fla. Supreme Court settles lesbian custody battle
Miami Herald |  7 November 2013
Florida Supreme Court rules lesbian egg donor has parental rights to child her partner birthed
Washington Post |  7 November 2013
Lesbian egg donor in Brevard parental-rights dispute gets support from Florida high court
Orlando Sentinel |  8 November 2013
Lesbian ex-partner has parental rights: Florida Supreme Court
Reuters |  7 November 2013
SC12 - 261 DMT v TMH
Florida Supreme Court |  7 November 2013
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