On behalf of Ronald H. Kauffman, P.A. posted in Assisted Reproductive Technology on Monday, December 9, 2013.

From in vitro fertilization to surrogacy, medical techniques are expanding the hope of parenthood to a wide diversity of couples. In a landmark ruling the Florida Supreme Court invalidated Florida Statutes 742.13 and 742.14, to the extent they don’t protect the parental rights of same sex parents who use divorce.

A couple had a lesbian relationship for 11 years. After agreeing to have a child together, an egg from T.M.H. was fertilized and implanted into D.M.T., who gave birth. The procedure was paid for with joint funds.

In 2006, the couple separated, and the child stayed with D.M.T., who received child support payments from T.M.H. Eventually, D.M.T. moved with the child to Australia.

D.M.T won at trial arguing that Florida does not recognize the parental rights of egg donors in same-sex relationships, only if the donation is from a heterosexual “commissioning couple”, but lost on appeal.

The Florida Supreme Court considered the exclusion of same-sex couples from the definition of “commissioning couple” as violating the federal and state Due Process Clauses and the state privacy clause, and as violating the state and federal Equal Protection Clauses.

“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 Court found excluding same-sex couples from the definition of “commissioning couple” did not serve to provide certainty to couples who use assisted reproductive technology.

While creating parenting opportunities once thought unattainable, medical technologies also introduce a host of legal complexities and uncertainties.

If you want to have a successful surrogacy procedure, you need a clear understanding of Florida law and the obligations of each party, as well as legal documents establishing parentage upon birth of the child.

The Florida Supreme Court opinion in D.M.T. v. T.M.H., can be found here.

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