T.M.H. v. D.M.T.

• Decision Date: 26 January 2012
• Docket Number: No. 5D09–3559.,5D09–3559.
• Citation: 79 So.3d 787
• Parties: T.M.H., Appellant, v. D.M.T., Appellee.
• Court: Florida District Court of Appeals

79 So.3d 787

T.M.H., Appellant,
v.
D.M.T., Appellee.

No. 5D09–3559.

District Court of Appeal of Florida, Fifth District.

Dec. 23, 2011.Rehearing Denied Jan. 26, 2012.

Unconstitutional as Applied

West's F.S.A. § 742.14Recognized as Unconstitutional

West's F.S.A. § 63.042(3)

[79 So.3d 788]

Robert A. Segal, Melbourne, for Appellant.

Robert J. Wheelock, Michael B. Jones, Eric Lee Bensen and Cynthia M. Winter, of The Wheelock Law Firm, LLC, Orlando, for Appellee.SAWAYA, J.

The issue we must resolve is whether two women involved in a lesbian relationship for several years share parental rights and responsibilities to a child born out of that relationship. The two women are Appellant, the biological mother, and Appellee, the birth mother. This is a case of first impression in Florida.

I. Factual and Procedural Background

The facts are not in dispute. Appellant and Appellee were involved in a committed relationship from 1995 until 2006. They lived together and owned real property as joint tenants, evidenced by a deed in the record. Additionally, both women deposited their income into a joint bank account and used those funds to pay their bills.

The couple decided to have a baby that they would raise together as equal parental partners. They sought reproductive medical assistance, where they learned Appellee was infertile. Appellant and Appellee, using funds from their joint bank account, paid a reproductive doctor to withdraw ova from Appellant, have them fertilized, and implant the fertilized ova into Appellee. The two women told the reproductive doctor that they intended to raise the child as a couple, and they went for counseling with a mental health professional to prepare themselves for parenthood. The in vitro fertilization procedure that was utilized proved successful, and a child was conceived.

The child was born in Brevard County on January 4, 2004. The couple gave the

[79 So.3d 789]

child a hyphenation of their last names. Although the birth certificate lists only Appellee as the mother and does not indicate a father, a maternity test revealed that there is a 99.99% certainty that Appellant is the biological mother of the child. Appellant and Appellee sent out birth announcements with both of their names declaring, “We Proudly Announce the Birth of Our Beautiful Daughter.” Both women participated at their child's baptism, and they both took an active role in the child's early education.

The women separated in May 2006, and the child lived with Appellee. Initially, Appellant made regular child support payments, which Appellee accepted. Appellant ended the support payments when she and Appellee agreed to divide the child's time evenly between them. They continued to divide the costs of education. The child treated both women as parents and did not distinguish between one being the biological or the birth parent.

The parties' relationship further deteriorated, and the affection each once had for the other eventually turned to animus. Appellee severed Appellant's contact with the child on December 22, 2007, when Appellee quit her job and moved with the child to an undisclosed location. Eventually, Appellant located them in Queensland, Australia, and there served Appellee with the underlying lawsuit.¹

Appellee filed a Verified Motion for Summary Judgment, which alleged that the facts were not in dispute and that she was entitled to summary judgment as a matter of law. Appellant accepted Appellee's facts for the purpose of summary judgment. The trial judge held a hearing on the motion and issued the final summary judgment in favor of Appellee. In ruling as he did, the trial judge stated that he felt constrained by the state of the law and expressed his hope that this court would reverse the ruling:

THE COURT: First, let me say, I find that [Appellee's] actions to be—this is my phraseology—morally reprehensible. I do not agree with her actions relevant to the best interest of the child. However, that is not the standard. There is no distinction in law or recognition of rights of the biological mother verses a birth mother. If a contract is not binding in this situation, then intent is not relevant under these circumstances.

....

Same-sex partners do not meet the definition of commissioning couple. There really is no protection for [Appellant] under Florida law because she could not have adopted this child to prevent this current set of circumstances. I do not

[79 So.3d 790]

agree with the current state of the law, but I must uphold it. I believe the law is not caught up with science nor the state of same-sex marriages. I do think that is on the horizon.

The trial court then stated to Appellant, “If you appeal this, I hope I'm wrong.” Appellant has appealed. In order to determine whether the trial judge was wrong in entering summary judgment in favor of Appellee, as Appellant argues, we must apply the de novo standard of review. See Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000); Krol v. City of Orlando, 778 So.2d 490, 491 (Fla. 5th DCA 2001).

Appellee advances several arguments in support of the summary judgment in her favor. She argues that section 742.14, Florida Statutes, denies an ovum donor any parental rights to the child. Appellee next argues that she and Appellant could not legally qualify to adopt a child and, therefore, the Legislature forbids gay or lesbian couples from sharing parental rights to a child. Appellee further argues that an implied consent form executed at the reproductive doctor's office included a written waiver that relinquished Appellant's parental rights to the child. Finally, Appellee asserts that since she and Appellant have separated, she has sole parental rights as the birth mother.

Appellant observes that this is a case of first impression in Florida and argues that the existing law does not contemplate the situation of a dispute between a biological mother and a birth mother and that there is nothing in the provisions of chapter 742 that applies to deny her parental rights to her child. Alternatively, Appellant challenges the constitutionality of chapter 742, including the provisions of section 742.14. Appellant also argues that the implied consent form did not include a binding waiver of her parental rights.

Our analysis reveals that there is nothing in chapter 742, and specifically section 742.14, that addresses the situation where the child has both a biological mother and a birth mother who were engaged in a committed relationship for many years and who decided to have a child to love and raise together as equal parental partners. This is a unique case, and the appellate courts in Florida have never before considered a case quite like it. Based on the facts and circumstances of this case, we can discern no legally valid reason to deprive either woman of parental rights to this child. The women were in a committed relationship for many years and both decided and agreed to have a child born out of that relationship to love and raise as their own and to share parental rights and responsibilities in rearing that child. Specifically, when it was discovered that Appellee was infertile, both women agreed to have ova removed from Appellant, to have them artificially inseminated with the sperm of a donor, and to have the ova inserted into Appellee's womb, in order to conceive a child that they would raise together as parental partners. After the child was born, both women were parents to the child and equally cared for the child for several years.

II. Application and Interpretation of Section 742.14 by the Trial Court and the Dissent.

The trial court held that Appellant is a “donor” of her ova and that the provisions of section 742.14 apply to deny Appellant parental rights to her child. Section 742.14 provides that:

Donation of eggs, sperm, or preembryos

The donor of any egg, sperm, or preembryo, other than the commissioning couple or a father who has executed a preplanned adoption agreement under s.

[79 So.3d 791]

63.212, shall relinquish all maternal or paternal rights and obligations with respect to the donation or the resulting children. Only reasonable compensation directly related to the donation of eggs, sperm, and preembryos shall be permitted.

The terms “donor” and “donation” are not defined in chapter 742, and when the Legislature does not define terms in a statute, the courts generally look to the plain and ordinary meaning of the terms. Greenfield v. Daniels, 51 So.3d 421 (Fla.2010). “Further, it is a well-settled rule of statutory construction that in the absence of a statutory definition, courts can resort to definitions of the same term found in case law.” Rollins v. Pizzarelli, 761 So.2d 294, 298 (Fla.2000); LaMorte v. State, 984 So.2d 548, 552 (Fla. 2d DCA 2008).

In K.M. v. E.G., 37 Cal.4th 130, 33 Cal.Rptr.3d 61, 117 P.3d 673 (2005), which is one of two cases we have found with facts similar to the instant case, the court held that a lesbian woman who provided her ova to her lesbian partner was not a donor of her ova. The court reasoned that there was no “true egg donation” because “K.M. did not intend to simply donate her ova to E.G., but rather provided her ova to her lesbian partner with whom she was living so that E.G. could give birth to a child that would be raised in their joint home.” Id. at 679. The following excerpt from K.M. accurately states the issue, the holding of the court, and how the court utilized the pertinent terminology:

In the present case, we must decide whether a woman who provided ova to her lesbian partner so that the partner could bear children by means of in vitro fertilization is a parent of those children. For the reasons that follow, we conclude that Family Code section 7613, subdivision (b), which provides that a man is not a father if he provides semen to a physician to inseminate a woman who is not his wife, does not apply when a woman provides her ova to impregnate her partner in a lesbian...