Florida’s Fifth Circuit Court of Appeal recently decided T.H.H. v. D.M.T., 37 Fla. L. Weekly D4b (Fla. 5th DCA Dec. 23, 2011).

The case presented an issue of first impression in Florida: Does application of Florida Statute 742.14 to deprive parental rights to a lesbian woman who provided her ova to her lesbian partner so both women could have a child to raise together as equal partners and who did parent the child for several years after its birth render the statute unconstitutional under the Equal Protection and Privacy Clauses of the federal and state constitutions?

The facts of the case are interesting and sure to be discussed among many in the Florida and national legal community (and possibly the Florida Supreme Court).  Several years ago a lesbian couple decided they wanted to raise a child together.  The child was conceived through an in vitro fertilization procedure where one partner’s ova was implanted into the other partner after being fertilized with genetic material of an unknown male donor.  The process went as planned, and a child was born and then raised by the couple for several years and even given a “hyphenated” last name .

Two years later, the partners separated, and the “birth mother” eventually moved away to what was an undisclosed location.  Eventually, the “biological mother” (the partner who donated her ova) filed a lawsuit to establish her parental rights upon finding the birth mother.  The birth mother moved for summary judgment, contending that the biological mother relinquished her parental rights when she signed an “informed consent” form at the office of the reproductive doctor who completed the in vitro procedure.  The trial court granted summary judgment in favor of the birth mother, and the biological mother appealed.

In its ruling reversing the trial court, the 5th DCA declared Section 742.14 to be unconstitutional, and found that the biological mother’s intent in providing her ova to the birth mother meant that she was not a “donor” for purposes of interpreting Section 742.14, and thus, the biological mother had not waived her parental rights when signing the informed consent at the time she donated her ova.

Following the 5th DCA opinion the birth mother moved for a panel rehearing and a rehearing en banc.  If the decision stands, the birth mother may appeal the issue to the Florida Supreme Court.