lt's The Law
Same Sex Parents Have Parental Rights
I am in a same sex relationship. My partner and I are talking about having a child together. Will Florida law treat us both as parents?
In the case of D.M.T v. T.M.H., Florida's Supreme Court answered your question in the affirmative. The parents in that case were two women involved in a long-term committed relationship. They agreed to jointly conceive and raise a child together as equal parenting partners. The child was conceived with assisted reproductive technology. T.M.H. provided the egg and D.M.T. gave birth to the child.
When the couple consulted a reproductive specialist, they found that D.M.T. was infertile. They told the doctor they intended to raise the child as a couple and they even went to counseling with a mental health professional to prepare for parenthood. The couple gave the child a hyphenation of their last names. The couple sent out birth announcements under their joint names announcing the birth of "our beautiful daughter." Both women participated in the child's baptism and took an active role in the child's early education. Approximately two and one-half years after the child was born, the couple separated. Initially, T.M.H. made child support payments which were accepted by D.M.T. The separated couple ultimately agreed to divide the child's time evenly, so support payments stopped.
The relationship between the former partners deteriorated and D.M.T. left the country with the child. T.M.H. sued to establish parental rights and other relief.
D.M.T. argued that T.M.H. claims were barred by Florida's assisted reproductive technology statute. That statute that a donor of any egg or sperm, other than the commissioning couple or a father who has executed a pre-planned adoption agreement, relinquishes all maternal or paternal rights and obligations with respect to the donation of the resulting children. It also defines a commissioning couple as the intended mother and father of the child conceived by assisted reproductive technology. D.M.T. also argued that because T.M.H. signed a waiver of parental rights as part of the egg donation process, her claims should fail.
In a 3-to-3 decision, Florida's Supreme Court affirmed the appellate court's decision that Florida's assisted reproductive technology statute is unconstitutional. The Court ruled that it violates the due process clause of the United States Constitution and the due process clause and privacy provisions of Florida's Constitution. It also violates the equal protection clauses of both the United States and Florida Constitutions.
The Court drew an analogy between T.M.H. and an unwed biological father. The unwed biological father has an inchoate interest that develops into a fundamental right to be a parent when he demonstrates a commitment to raise a child by assuming parental responsibilities. The Court explained it is not the biological relationship per se that makes a parent, but rather the assumption of parental responsibilities which rises to constitutional significance. The Court brushed aside the signed waiver, with explanation that the circumstances of the case clearly confirmed T.M.H. did not intend to waive parental rights, but, in fact, intended to establish a parenting relationship. In summation, the only difference between T.M.H. and a biological father was T.M.H.'s gender.
It was the totality of circumstances in the T.M.H. case confirming T.M.H. was a partner, intended to be a parent, involved in birth and raising of a child, and acted as a parent. It is the totality of those circumstances that led the Court to confirm T.M.H. had parental rights.
If you are planning to go down a similar road, I suggest you discuss your plans with an experienced attorney to maximize your chances for success in any later dispute about parental rights.
By: William G. Morris, Esquire
William G. Morris is an attorney with offices at 247 North Collier Boulevard on Marco Island, Florida. His practice covers a broad range of subjects, including civil litigation, real estate, business and corporate law, estate planning and probate, domestic relations and contracts. He writes this column periodically with respect to legal matters that frequently affect non-lawyers. The information contained in this column is not intended as legal advice and, of necessity, is generalized. For questions about specific circumstances, the reader should consult a qualified attorney.
Questions for this column can be sent to: William G. Morris, e-mail: firstname.lastname@example.org or by fax, (239) 642-0722 or
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