Top state court says woman who donated egg to female partner has parental rights
By Martha Neil
A "biological mother" who donated an egg to her female partner has the same parental rights to the couple's 9-year-old daughter as the other woman in the now-dissolved lesbian relationship, the Florida Supreme Court has ruled in a close decision.
First, the donor law, Chapter 742.14, Florida Statutes (2008), violates fundamental parental rights of the biological mother, T.M.H., under both the state and federal constitution, the court held in a 4-3 ruling. Important to its decision was the fact that T.M.H. was actively involved in her daughter's life for years, until her former partner separated them and took the child to Australia.
Applying strict scrutiny, the majority found that the state had failed to meet its burden of proving that the law "furthers a compelling government interest through the least intrusive means." In fact, the majority said, "based on the factual situation before us, we do not discern even a legitimate state interest in applying section 742.14 to deny T.M.H. her right to be a parent to her daughter."
Second, the statute violates equal-protection provisions of both the state and federal constitution because it treats T.M.H. differently than an unmarried biological father involved in a heterosexual relationship. The court applied a rational-basis analysis to reach this result.
"It would indeed be anomalous if, under Florida law, an unwed biological father would have more constitutionally protected rights to parent a child after a one-night stand than an unwed biological mother who, with a committed partner and as part of a loving relationship, planned for the birth of a child and remains committed to supporting and raising her own daughter," the majority states.
The majority also found that a form executed by T.M.H. as part of the egg-donation medical procedure that enabled the other woman, D.M.T., to conceive and bear the couple's child, did not waive the parental rights of the biological mother.
However, in a dissenting opinion three judges say it has not been established that the couple intended to co-parent the girl as part of their decade-long relationship. They would uphold the informed consent form that T.M.H. signed indicating waiver of her parental rights as a valid contract.