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

• Decision Date: 12 December 2013
• Docket Number: No. SC12–261.,SC12–261.
• Citation: 129 So.3d 320
• Parties: D.M.T., Appellant, v. T.M.H., Appellee.
• Court: Florida Supreme Court

129 So.3d 320

D.M.T., Appellant,

v.T.M.H., Appellee.

No. SC12–261.

Supreme Court of Florida.

Nov. 7, 2013.

Rehearing Denied Dec. 12, 2013.

Michael B. Jones of The Wheelock Law Firm, LLC, Orlando, FL, for Appellant.

Christopher V. Carlyle and Shannon McLin Carlyle of The Carlyle Appellate Law Firm, The Villages, FL; Robert A. Segal of Law Offices of Robert A. Segal, P.A., Melbourne, FL, for Appellee.

Randall C. Marshall, Miami, FL, for Amicus Curiae American Civil Liberties Union Foundation of Florida, Inc.

Leslie Cooper, New York, NY, for Amicus Curiae American Civil Liberty Union Foundation.

Beth Littrell, Atlanta, GA, for Amicus Curiae Lambda Legal.

Joseph S. Jackson, Gainesville, FL, for Amici Curiae University of Florida Frederic G. Levin College of Law Center on Children and Families, University of Miami School of Law Children and Youth Law Clinic, Nova Southeastern University Law Center Children and Families Clinic, and Barry University School of Law Children and Families Clinic.

Shannon P. Minter of the National Center for Lesbian Rights, San Francisco, CA; Cristina Alonso and Christopher B. Corts of Carlton Fields, P.A., Miami, FL, for Amicus Curiae American Academy of Assisted Reproductive Technology Attorneys.

Reginald Brown, Daniel S. Volchok, and Daniel Aguilar of Wilmer Cutler Pickering Hale and Dorr LLP, Washington, DC, for Amici Curiae The National Association of Social Workers and National Association of Social Workers, Florida Chapter.

PARIENTE, J.

“The intangible fibers that connect parent and child have infinite variety. They are woven throughout the fabric of our society, providing it with strength, beauty, and flexibility. It is self-evident that they are sufficiently vital to merit constitutional protection in appropriate cases.” Lehr v. Robertson, 463 U.S. 248, 256, 103 S.Ct. 2985, 77 L.Ed.2d 614 (1983).

The parents in this case are two women, D.M.T. and T.M.H., who were involved in a long-term committed relationship when they agreed to jointly conceive and raise a child together as equal parental partners. Their child was conceived through the couple's use of assisted reproductive technology, with T.M.H. providing the egg and D.M.T. giving birth to the child. After the child was born, the couple gave her a hyphenation of their last names, and both T.M.H. and D.M.T. participated in raising their child until their relationship soured and D.M.T. absconded with the child. T.M.H. now seeks to establish her parental rights to the child and also to reassume parental responsibilities. D.M.T., conversely, seeks to prevent T.M.H. from doing either. D.M.T. asserts that she, and she alone, should have the fundamental right to be the parent of the child. No other individual has asserted parental rights to the child, and no party or amicus curiae in this case other than D.M.T. takes the position that T.M.H. should be denied her rights.¹

In T.M.H. v. D.M.T., 79 So.3d 787 (Fla. 5th DCA 2011), the Fifth District Court of Appeal held that Florida's assisted reproductive technology statute—section 742.14, Florida Statutes (2008)—did not apply to T.M.H., and that the trial court's application of the statute was unconstitutional because it prevented T.M.H., who provided the egg for the couple, from asserting her parental rights to the child. Id. at 792, 798, 800. Because the Fifth District declared section 742.14 unconstitutional as applied to T.M.H., we have mandatory jurisdiction under article V, section 3(b)(1), of the Florida Constitution to review this case. In addition, the Fifth District certified a question of great public importance regarding whether the statute was unconstitutional, and we also have jurisdiction on that basis. Seeart. V, § 3(b)(4), Fla. Const.²

We conclude that the statute is unconstitutional (1) as a violation of the Due Process Clause of the United States Constitution and separately as a violation of the Due Process Clause and privacy provision of the Florida Constitution; and (2) as a violation of the federal Equal Protection Clause and separately as a violation of the Florida Equal Protection Clause. In reaching our conclusion, we rely on long-standing constitutional law that an unwed biological father has an inchoate interest that develops into a fundamental right to be a parent protected by the Florida and United States Constitutions when he demonstrates a commitment to raising the child by assuming parental responsibilities. It is not the biological relationship per se, but rather “the assumption of the parental responsibilities which is of constitutional significance.” Matter of Adoption of Doe, 543 So.2d 741, 748 (Fla.1989).

Because the application of section 742.14 operated to automatically deprive T.M.H. of her ability to assert her fundamental right to be a parent, we conclude, based on the circumstances of this case, that the statute is unconstitutional as applied under the Due Process Clauses of the Florida and United States Constitutions and under the privacy provision of the Florida Constitution. Further, we hold that section 742.14, in combination with the restrictive definition of the term “commissioning couple” in section 742.13(2), also violates state and federal equal protection by denying same-sex couples the statutory protection against the automatic relinquishment of parental rights that it affords to heterosexual unmarried couples seeking to utilize the identical assistance of reproductive technology.

Accordingly, we affirm the Fifth District's determination of statutory unconstitutionality and also answer the certified question in the affirmative, but we disapprove the Fifth District's holding that the statute does not apply in this situation. Our holding that T.M.H. has rights deserving of constitutional protection does not mean that D.M.T.'s parental rights are not deserving of constitutional protection—quite the opposite. Our decision does not deny D.M.T. the right to be a parent to her child, but requires only that T.M.H.'s right to be a parent of the child be constitutionally recognized. D.M.T.'s preference that she parent the child alone is sadly similar to the views of all too many parents who, after separating, prefer to exclude the other parent from the child's life. As the Fifth District wisely observed:

[D.M.T.] suggests that because she and [T.M.H.] have separated, a choice must be made. She posits that, as the birth mother, she should have exclusive parental rights to the child and that [T.M.H.], as the biological mother, should have no rights at all. If we were to accept [D.M.T.'s] argument that a choice must be made between the two, perhaps a Solomonic approach to resolving this dispute would be preferable, but we are neither possessed of the wisdom of Solomon nor are we able to apply his particular methodology under the law as we know it today. Parental rights, which include the love and affection an individual has for his or her child, transcend the relationship between two consenting adults, and we see nothing in this record that makes either [T.M.H. or D.M.T.] an exception that places those rights in one to the exclusion of the other. It is unknown what caused these two women to cross the proverbial line between love and hate, but that is a matter between [T.M.H. and D.M.T.]. Their separation does not dissolve the parental rights of either woman to the child, nor does it dissolve the love and affection either has for the child.

T.M.H., 79 So.3d at 802–03.

We remain ever mindful that although our resolution of the constitutional issues revolves around the rights of T.M.H., the biological mother, we cannot and should not lose sight of the fact that there is a child at the center of this dispute whose best interests will ultimately determine the extent to which each parent will play a role in her life through legal rights and legal responsibilities. We therefore remand this case to the trial court to determine, based on the best interests of the child, issues such as parental time-sharing and child support, and we emphasize, as did the Fifth District, that an all-or-nothing choice between the two parents is not necessary.

FACTS AND PROCEDURAL HISTORY

The child at the center of this dispute was born on January 4, 2004. Her birth mother, D.M.T., and her biological mother, T.M.H., were in a long-term committed relationship at the time of the child's birth, and the child began her life by living with both parents.³ The Fifth District set forth the undisputed facts of this case as follows:

[T.M.H.] and [D.M.T.] 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 [D.M.T.] was infertile. [T.M.H.] and [D.M.T.], using funds from their joint bank account, paid a reproductive doctor to withdraw ova from [T.M.H.], have them fertilized, and implant the fertilized ova into [D.M.T.]. 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 child a hyphenation of their last names. Although the birth certificate lists only [D.M.T.] as the mother and does not indicate a father, a maternity test revealed that there is a 99.99% certainty that [T.M.H.] is the biological mother of the child. [T.M.H.] and [D.M.T.] sent out birth announcements with both of their names declaring, “We Proudly Announce the Birth of Our Beautiful Daughter.” Both women participated at...