Florida Recognizes Dual Maternity, Approves X.X.G. in the Process

The Florida Supreme Court has released its decision in D.M.T. v. T.M.H. Recall that the case involved a lesbian couple who conceived through assisted reproductive technology, with TMH providing the egg and DMT giving birth to the child. The couple split and DMT left with the child, arguing on her way out the door and up through the courts that TMH was just an egg donor.

The majority’s holdings are summarized in the conclusion:

For the foregoing reasons, we hold that application of section 742.14 as a bar to T.M.H.’s assertion of parental rights is unconstitutional. The due process guarantees in the Florida and United States Constitutions and the privacy provision of the Florida Constitution do not permit the State to deprive this biological mother of parental rights where she was an intended parent and actually established a parental relationship with the child. We further hold that sections 742.13(2) and 742.14, in providing an exception to the statutory relinquishment of parental rights for egg and sperm donors who are part of a heterosexual “commissioning couple,” but not those who are part of a same-sex couple, violate the Florida and federal Equal Protection Clauses. We therefore hold that T.M.H.’s parental rights have not been terminated by law.

There is a lot going on in this opinion and many law review articles are already in the offing, I’m sure.

Very excitingly, the majority cites approvingly to the Third DCA’s gay adoption ruling in X.X.G., holding:

Finally, we note that the Third District has held Florida law prohibiting same-sex couples from adopting as unconstitutional. See Adoption of X.X.G., 45 So. 3d at 92. In finding the legislative prohibition against a homosexual adopting a child to be unconstitutional as a denial of equal protection lacking a rational basis, the Third District in Adoption of X.X.G. noted that the parties in that case agreed “that gay people and heterosexuals make equally good parents,” and that no party offered a justification for the prohibition on homosexual adoption based “on any theory that homosexual persons are unfit to be parents.” Id. at 85.

Likewise, in this case, no party and no amicus curiae has advanced the argument that either T.M.H. or, for that matter, D.M.T., is unfit to be a parent. Further, no party or amicus curiae has advanced the argument that the child’s best interests would be better served by having only one loving parent rather than two. To the contrary, the very statute that bars T.M.H. from being considered part of a “commissioning couple” fully contemplates that D.M.T., as the birth mother, would be recognized as the mother of the child born from the couple’s use of assisted reproductive technology, even though D.M.T. has no genetic connection to the child.

We conclude that 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.

Sounds like a clear message that if gay adoption ever comes before this court, there are at least four votes in support.

The decision is here: http://www.floridasupremecourt.org/decisions/2013/sc12-261.pdf .


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