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09/06/12 It's The Law: Egg Donor Can Claim Parental Rights


We are considering the possibility of in vitro fertilization in an egg donor because of fertility problems. After birth, can the egg donor claim parental rights?


In 1993, Florida's Legislature adopted a statute addressing this issue. The statute reads as follows:

"The donor of any egg, sperm, or preembryo, other than the commissioning couple or a father who has executed a preplanned adoption agreement under §63.212, Fla. Stat. 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."

There has not been much litigation involving that statute but, in the 2002 case of Lamaritata v. Lucas, Florida's Second District Court of Appeal ruled the statute meant what it said. In that case, a sperm donor filed a paternity suit following the birth of children. The donor had signed a contract under which the donor provided sperm to a recipient with expectation she would become pregnant through artificial insemination. The appellate court ruled that the statute and contract between the parties barred the sperm donor's claim. The decision did not specifically find the statute to be constitutional and focused mainly on the contract between the parties.

In December of 2011, Florida's Fifth District Court of Appeal also considered the statute. It, too found the statute clear, but focused on the constitutionality of the statute. By a 2 to 1 majority, the court found the statute clearly unconstitutional.

In the case of T.M.H., a woman donated an egg to the birth mother with whom she was involved in a lesbian relationship. The donor filed suit against the birth mother requesting a court order that she was the biological mother and granting her shared parental responsibility and child support.

The donor and the birth mother were a couple who decided to have a baby. They utilized the services of a reproductive doctor and a child was born. The birth certificate only listed the birth mother as the mother and did not indicate a father. A paternity test revealed there was a 99.99% certainty that the donor was the biological mother.

Eventually, the women separated. They shared time with the child, but as time went on, their relationship deteriorated. The birth mother severed the donor's contact with the child and eventually moved to an undisclosed location. When the donor located the birth mother and child in Australia, suit was filed.

The trial court applied the statute and found that the statute denied the donor any parental rights to the child. In its reversal, the appellate court noted a number of factors.

First, the court found it crucial that both biological and birth mothers intended to produce a child that would be raised in their own home as their joint child. As such, it was not a true "egg donation" situation.

More importantly, the appellate court focused on established rights to procreate and parent one's child as fundamental rights under both the Florida Constitution and the United States Constitution. Statutes interfering with these fundamental rights are presumptively unconstitutional and subject to strict scrutiny. Application of the statute to deny the donor parental rights to her child violated her constitutional rights to equal protection and privacy.

The court also addressed an informed consent form signed by the donor. The form included a provision relinquishing any claim of the donor to or over the offspring that might result from the donation. The court determined the waiver applied only to a donor who had relinquished any claim. The biological mother was not a donor for purposes of the waiver and did not intend to relinquish any claim. In fact, both women presented themselves as a couple seeking reproductive therapy and intending to raise a child together. Based on the facts and circumstances of the case, signing the form did not waive parental rights. The court ruled that both mothers had parental rights to the child.

There was a vigorous dissent in T.M.H. and Florida's Supreme Court has not ruled on the issue. Hence, for the time being, there is a conflict between the Fifth District Court of Appeal and the Second District Court of Appeal.

It is clear that the facts in T.M.H. and relationship of the "mothers" had a significant impact on the decision. The decision was not unanimous. How Florida's Supreme Court might rule remains unknown. For these reasons, I urge you to discuss the facts of your situation and possible courses of action with an experienced attorney.

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