CopyCited 13 times | Published | Supreme Court of Florida | 38 Fla. L. Weekly Supp. 812, 2013 WL 5942278, 2013 Fla. LEXIS 2422
...n this .case other than D.M.T. takes the position that T.M.H. should be denied her rights. 1 In T.M.H. v. D.M.T.,
79 So.3d 787 (Fla. 5th DCA 2011), the Fifth District Court of Appeal held that Florida’s assisted reproductive technology statute — section
742.14, Florida Statutes (2008) — did not apply to T.M.H., and that the trial court’s application of the statute was unconstitutional because it prevented T.M.H., who provided the egg for the couple, from asserting her parental rights to the child. Id. at 792, 798, 800 . Because the Fifth District declared section
742.14 unconstitutional as applied to T.M.H., we have mandatory jurisdiction under article V, section 3(b)(1), of the Florida Constitution to review this case....
...nsibilities. It is not the biological relationship per se, but rather “the assumption of the parental responsibilities which is of constitutional significance.” Matter of Adoption of Doe,
543 So.2d 741, 748 (Fla.1989). Because the application of section
742.14 operated to automatically deprive T.M.H....
...of her ability to assert her fundamental right to be a parent, we conclude, based on the circumstances of this case, that the statute is unconstitutional as applied under the Due Process Clauses of the Florida and United States Constitutions and under the privacy provision of the Florida Constitution. Further, we hold that section
742.14, in combination with the restrictive definition of the term “commissioning couple” in section
742.13(2), also violates state and federal equal protection by denying same-sex couples the statutory protection against the automatic re...
...other with a petition to establish parental rights to the couple’s child and for declaratory relief, including an adjudication of parentage pursuant to chapter 742, Florida Statutes (2008), and a declaration of statutory invalidity with respect to section
742.14, the assisted reproductive technology statute. T.M.H.,
79 So.3d at 789 n. 1, 799. Section
742.14 provides that, except in the case of a “commissioning couple” — defined in section
742.13 as the intended mother and father of a child who will be conceived through assisted reproductive technology using the biological material of at least one of the intended parents — and fathers who have executed a preplanned adoption agreement, an egg or sperm donor must relinquish any claim to parental rights or obligations to the donation or the resulting child. See §§
742.13(2),
742.14, Fla....
...ong. (Emphasis added.) The trial court therefore found both that the birth mother and the biological mother, as a same-sex couple, could not meet the definition of a “commissioning couple,” as the term is defined in section
742.13(2) and used in section
742.14, to be exempt from the relinquishment of parental rights, and that Florida law does not recognize the rights of a biological mother versus a birth mother....
...uation presented by the facts of this ease, id. at 797-98 , the Fifth District concluded that the biological mother is “entitled to constitutionally protected parental rights to the child and that the statutory relinquishment of those rights under section 742.14 is prohibited by the Federal and Florida Constitutions.” Id. at 798 . In its analysis of the issues presented, the Fifth District reviewed the trial court’s determination that the biological mother is a “donor” as that term is used in section 742.14 and that the statute therefore applies to deprive her of parental rights to her child....
...because she did not intend to give her ova away.” Id. at 792 . “Rather,” the Fifth District explained, “she always intended to be a mother to the child born from her ova and was a mother to the child for several years after [the child’s] birth.” Id. After concluding that section 742.14 did not apply to the biological mother, the Fifth District then addressed the birth mother’s contention that the biological mother had relinquished her parental rights to the child, rejecting two aspects of this argument. First, the Fifth District explained that the biological mother’s protected parental rights could not, consistent with the Florida and United States Constitutions, be extinguished through the trial court’s application of section 742.14, stating as follows: Here, it is undisputed that [the biological mother] formed and maintained a parental relationship for several years after the child was born, and she did so as an equal parental partner with [the birth mother] who,...
...relinquished her parental rights to her child. We believe that [the biological mother] has constitutionally protected rights as a genetic parent who has established a parental relationship with her genetic offspring that transcend the provisions of section 742.14....
...the child to Australia and deprive [the biological mother] of any further contact with the child.” Id. Judge Monaco separately wrote a concurring opinion, which was joined by Judge Sawaya, further emphasizing the Fifth District’s conclusion that section 742.14 does not apply to T.M.H....
...ANALYSIS With this factual and procedural background established, we now proceed to analyze the important constitutional issues presented in this case. 4 Our analysis begins with a brief overview of the statutory provisions implicated, including our determination of whether section 742.14 is applicable to the circumstances presented....
...Concluding that the statute applies, we then turn to a discussion of T.M.H.’s constitutional challenges to the statute’s validity. In this regard, we review the constitutional protections for parenting, determine the nature of T.M.H.’s interest, and analyze whether sections
742.13(2) and
742.14 violate the state and federal constitutional guarantees of due process, privacy, and equal protection....
...Finally, we address and reject D.M.T.’s argument that T.M.H. waived any interest she may have in the child by signing a standard informed consent form in the course of the couple’s use of assisted reproductive technology to conceive a child. I. Sections
742.13 and
742.14 In the decision below, the Fifth District determined that section
742.14, the assisted reproductive technology statute, did not apply to T.M.H., the biological mother, in this situation because she is not a “donor” as that term is used in the statute. 5 We disagree with the Fifth District as to the statutory construction analysis because we conclude that the statute does, on its face, apply to T.M.H. as the provider of the egg for the couple. Our interpretation of section
742.14 and the related provision in section
742.13 defining the term “commissioning couple,” as well as our determination of the statutes’ constitutionality, are pure questions of law, subject to de novo review....
...to accord meaning and harmony to all of its parts.’ ” Jones v. ETS of New Orleans, Inc.,
793 So.2d 912, 914-15 (Fla.2001) (quoting Acosta v. Richter,
671 So.2d 149, 153-54 (Fla.1996)). Fur *333 ther, we necessarily must read sections
742.13 and
742.14 together. See Fla. Dep’t of State, Div. of Elections v. Martin,
916 So.2d 763, 768 (Fla.2005). Section
742.14, which is Florida’s assisted reproductive technology statute, is entitled “Donation of eggs, sperm, or preembryos” and has provided as follows since 1993: The donor of any egg, sperm, or preem-bryo, other than the commissioning couple or a father who has executed a preplanned adoption agreement under s.
63.212, 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. §
742.14, Fla. Stat. (emphasis added). The term “commissioning couple,” as used in section
742.14, is defined in section
742.13(2) as “the intended mother and father of a child who will be conceived by means of assisted reproductive technology using the eggs or sperm of at least one of the intended parents.” §
742.13(2), Fla....
...T.M.H.,
79 So.3d at 792, 803-04 . Therefore, according to the Fifth District, T.M.H. is not considered a “donor” as that term is used in the statute. Id. We reject the Fifth District’s construction of the assisted reproductive technology statute. The plain language of section
742.14 does not provide for the subjective intentions of someone in T.M.H.’s position to be taken into consideration in determining whether he or she is a “donor” under the terms of the statute....
...ntal rights as to their provision of biological material during the course of assisted reproductive technology—(1) members of a “commissioning couple”; and (2) fathers who have executed a preplanned adoption agreement. Indeed, the structure of section 742.14 designates these groups as fitting within the term “donor,” and then provides that they are specifically exempted from the statutory relinquishment of parental rights. See § 742.14, Fla....
...Instead, the Legislature articulated a policy of treating all individuals who provide eggs, sperm, or preembryos as part of assisted reproductive technology as “donor[s]” bound by the terms of the statute, and then exempting two specific groups in accordance with the purpose behind the statutory enactment. To hold that section 742.14 does not apply to T.M.H....
...stance of reproductive technology to conceive a child to jointly raise and who provided biological material to her partner with the specific intent to become a parent. II. The Constitutionality of the Statutes We begin our constitutional analysis of section
742.14, and the corresponding provision in section
742.13 defining the term “commissioning couple,” by addressing T.M.H.’s due process and privacy arguments that application of the assisted reproductive technology statute abridges her fundamental right to be a parent. We then address the equal protection argument that section
742.14, in combination with section
742.18(2), unconstitutionally creates an unreasonable classification based on sexual orientation. We hold that section
742.14 is unconstitutional as applied on each basis under both the United States Constitution and separately under the Florida Constitution....
...to enjoy and defend life and liberty, [and] to pursue happiness.” Art. I, § 2, Fla. Const.; see Grissom,
293 So.2d at 62 . The Fifth District cogently explained this proposition as follows: Our analysis reveals that there is nothing in chapter 742, and specifically section
742.14, that addresses the situation where the child has both a biological mother and a birth mother who were engaged in a committed relationship for many years and who decided to have a child to love and raise together as equal parental partners....
...Indeed, the Constitution “provides heightened protection against government interference with certain fundamental rights and liberty in *340 terests,” including the right “to have children.” Glu cksberg,
521 U.S. at 720 ,
117 S.Ct. 2258 . In this case, it is clear that application of section
742.14 forces the automatic statutory relinquishment of T.M.H.’s “right to form a parental relationship with her child and to continue to participate in raising the child as a parent as she had done for several years after the child was born.” T.M.H.,
79 So.3d at 796 ....
...d reproductive technology statute to deprive the biological mother of her fundamental right to be a parent furthers a compelling governmental interest through the least intrusive means. This showing has not been made. We recognize the important role section 742.14 plays in protecting couples seeking to use assisted reproductive technology to conceive a child from parental rights claims brought by typical third-party providers of the genetic material used in assisted reproductive technology, as well as the State’s corresponding interest in furthering that objective. This case, however, does not implicate those concerns. Quite simply, 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....
...at 715, but the child in this case was almost four years old at the time D.M.T. prevented T.M.H. from having further contact with her. We conclude that the State does not have a compelling interest in depriving T.M.H. of her right to be a parent in this situation. Accordingly, we hold that section 742.14 is unconstitutional as applied to abridge T.M.H.’s fundamental right to be a parent....
...The specific question we confront is whether the classification between heterosexual and same-sex couples drawn by the assisted reproductive technology statute bears some rational relationship to a legitimate state purpose. D.M.T. argues that defining the term “commissioning couple” in section
742.13(2), as applied in section
742.14, to include only one male and one female is related to the State’s legitimate interest in not extending rights to same-sex couples. Specifically, she cites to Florida law that declines to recognize same-sex marriages and prohibits homosexuals from adopting children. We reject this argument as unavailing for several reasons. First, section
742.14 does not operate to grant parental rights to biological parents, but only to provide for the relinquishment of those rights in the case of the typical egg or sperm donor. In other words, section
742.14 allows a member of a “commissioning couple” to preserve his or her interest in the child conceived through assisted reproductive technology; however, that individual becomes a parent only if he or she has some legal basis to be recognized as a parent....
...(2008) (defining the term “parent” to mean “a woman who gives birth to a child or a man whose consent to the adoption of the child would be required”); §
742.11, Fla. Stat. (2008) (defining the parental status of birth mothers and non-genetic, legal fathers). That is, sections
742.13 and
742.14 do not create a statutory basis for an individual who would not otherwise have parental rights to claim those rights. Therefore, because section
742.14 does not operate to grant rights, but only to eliminate rights that are already held or that may develop, any State interest that could potentially exist in not extending rights to same-sex couples is not implicated. Second, there is no indication that the exception provided in section
742.14 for a “commissioning couple” extends only to married couples, so the state constitutional provision against same-sex marriage is also not implicated....
...joined forces solely for the purpose of artificially inseminating” the mother); L. A.L. v. D.A.L.,
714 So.2d 595, 596-97 (Fla. 2d DCA 1998) (granting a petition for writ of certiorari and directing the trial court to determine the applicability of section
742.14 where the mother and father had entered into an agreement regarding the use of assisted reproductive technology)- Since intent, pursuant to the definition of “commissioning couple” found in section
742.13(2) and used in section
742.14, is the determinative element regarding whether two individuals seeking the assistance of reproductive technology to conceive qualify as a “commissioning couple,” it is of course relevant to the inquiry....
...s unconstitutional as applied to same-sex couples because the statute does not permit same-sex couples — and only same-sex couples— to qualify as a “commissioning couple.” Accordingly, based on the reasons we have set forth, we conclude that section
742.14, in conjunction with the restrictive definition of “commissioning couple” in section
742.13(2), violates the Equal Protection Clauses of the Florida and United States Constitutions as applied in this case because it prohibited T.M.H., as part of a same-sex couple, from qualifying as a “commissioning couple.” III. Waiver of Rights Lastly, we address the birth mother’s contention that, regardless of the *345 application of section
742.14 in this case, the biological mother waived any parental rights to this child by signing a standard informed consent form during the couple’s process of seeking medical assistance to conceive....
...Accordingly, the informed consent form signed by the biological mother has nothing to do with a release of parental rights where she was not an anonymous donor, but rather, was a full-fledged partner in the conception and raising of the child. CONCLUSION For the foregoing reasons, we hold that application of section 742.14 as a bar to T.M.H.’s assertion of parental rights is unconstitutional....
...on of the Florida Constitution do not permit the State to deprive this biological mother of parental rights where she was an intended parent and actually established a parental relationship with the child. We further hold that sections
742.18(2) and
742.14, in providing an exception to the statutory relinquishment of parental rights for egg and sperm donors who are part of a heterosexual “commissioning couple,” but not those who are part of a same-sex couple, violate the Florida and federal Equal Protection Clauses....
...Constitution and separately under the Florida Constitution. However, we disapprove the Fifth District’s decision to the extent that the district court alternatively determined that the statute did not apply because the definition of “donor” in section 742.14 allows for an inquiry of subjective intent....
...It is so ordered. QUINCE, LABARGA, and PERRY, JJ., concur. *348 POLSTON, C.J., dissents with an opinion in which LEWIS and CANADY, JJ., concur. . The question certified by the Fifth District as one of great public importance was as follows: DOES APPLICATION OF SECTION 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 PARENTAL PARTNERS AND WHO DID PARENT THE CHILD FOR SEVERAL YEARS *328 AFTER ITS BIRTH...
CopyCited 7 times | Published | Florida 5th District Court of Appeal
...See Volusia County v. Aberdeen at Ormond Beach, L.P.,
760 So.2d 126, 130 (Fla.2000); Krol v. City of Orlando,
778 So.2d 490, 491 (Fla. 5th DCA 2001). Appellee advances several arguments in support of the summary judgment in her favor. She argues that section
742.14, Florida Statutes, denies an ovum donor any parental rights to the child....
...logical mother and a birth mother and that there is nothing in the provisions of chapter 742 that applies to deny her parental rights to her child. Alternatively, Appellant challenges the constitutionality of chapter 742, including the provisions of section 742.14. Appellant also argues that the implied consent form did not include a binding waiver of her parental rights. Our analysis reveals that there is nothing in chapter 742, and specifically section 742.14, that addresses the situation where the child has both a biological mother and a birth mother who were engaged in a committed relationship for many years and who decided to have a child to love and raise together as equal parental partners....
...ellee’s womb, in order to conceive a child that they would raise together as parental partners. After the child was born, both women were parents to the child and equally cared for the child for several years. II. Application and Interpretation of Section 742.14 by the Trial Court and the Dissent. The trial court held that Appellant is a “donor” of her ova and that the provisions of section 742.14 apply to deny Appellant parental rights to her child. Section 742.14 provides that: Donation of eggs, sperm, or preembr-yos The donor of any egg, sperm, or preem-bryo, other than the commissioning couple or a father who has executed a preplanned adoption agreement under s....
...se. This interpretation and application of the statute violates Appellant’s constitutional rights to equal protection and privacy. Therefore, based on the trial court’s interpretation of the statute, we must reverse the judgment under review. A. Section 742.14 as Interpreted and Applied by the Trial Court Renders the Statute Unconstitutional Because It Violates Appellant’s Constitutionally Protected Rights....
...4th DCA) (citing Skinner and recognizing that procreation is a right that has been designated by the United States Supreme Court as a fundamental right guaranteed by the Constitution), review denied,
666 So.2d 144 (Fla.1995). Here, Appellee clearly failed to meet her burden of showing that section
742.14 withstands strict scrutiny and does not violate the constitution....
...We totally reject the argument made in the dissent that Appellant never had any parental rights and that the strict scrutiny test is, therefore, inapplicable. The very statute the trial court applied to deprive Appellant of her parental rights recognizes her parental rights to her child. Section 742.14 specifically states, in pertinent part, that “the donor of any egg ......
...Moreover, chapters 63 and 382 do not establish parentage or parental rights. Chapter 742, entitled “Determination of Parentage,” is the statutory vehicle by which paternity is established for children born out of wedlock, see section
742.10(1), Florida Statutes, and it is the provisions of section
742.14 that have been applied by the trial court and argued by Appellee to deny Appellant parental rights to her child....
...ilization was a remote thought in the minds of the scientists of the times has much currency today. Yet the dissent uses this purported ancient rule as its basis for arguing that Appellant never had any parental rights to begin with and that even if section 742.14 is inapplicable, she has no parental rights in the end....
...The citation of two decisions from other jurisdictions that adopt what the dissent purports to be a common law rule that the Florida courts have not adopted fails to answer the question of what rights Appellant had that are relinquished by application of section 742.14....
...Oklahoma,
316 U.S. 535, 541 ,
62 S.Ct. 1110, 1113 ,
86 L.Ed. 1655 (1942), and ‘rights far more precious than property rights,’ May v. Anderson,
345 U.S. 528, 533 ,
73 S.Ct. 840, 843 ,
97 L.Ed. 1221 (1953). Pursuant to the trial court’s application of section
742.14, the “essential” right of Appellant to “bear or beget a child” are statutorily relinquished....
...the gestational mother is the legal mother of a child to the exclusion of the intended genetic mother because it infringed the genetic mother’s rights to procreate and parent her child). In addition, pursuant to the trial court’s application of section 742.14, Appellant’s right to form a parental relationship with her child and to continue to participate in raising the child as a parent as she had done for several years after the child was born are statutorily relinquished....
...Appellant had relinquished her parental rights to her child. We believe that Appellant has constitutionally protected rights as a genetic parent who has established a parental relationship with her genetic offspring that transcend the provisions of section 742.14....
...ld relationship and make uniquely valuable contributions to the child’s development.”). We conclude that Appellant is entitled to constitutionally protected parental rights to the child and that the statutory relinquishment of those rights under section 742.14 is prohibited by the Federal and Florida Constitutions....
...uthority of a State to draw such “legal” lines as it chooses.’ ” Stanley,
405 U.S. at 652 ,
92 S.Ct. 1208 (quoting Glona v. Am. Guar. & Liab. Ins. Co.,
391 U.S. 73, 75-76 ,
88 S.Ct. 1515 ,
20 L.Ed.2d 441 (1968)). The dissent asserts that section
742.14 provides a reasonable approach to deciding who is, and who is not, entitled to parental rights given the multitude of claims to such rights made possible by assisted reproductive technology....
...The dissent also attempts to skirt the constitutional infirmities of the statute by claiming that the constitutional issues were not adequately addressed in the trial court or in this court. 10 We completely reject *800 that argument. Appellant specifically pled in her complaint that section 742.14 is unconstitutional, and it was adequately argued in the trial court and in this court....
...We hardly think that counting the number of pages in a brief is a viable standard by which to judge whether an issue has been adequately raised in an appellate court. What was inadequately presented, because it was not presented at all, was any attempt on the part of Appellee to meet her burden of showing that section 742.14 withstands strict scrutiny and is constitutional....
...e so both women could have a child to raise as equal parental partners; they did so for several years after the child was born; and Appellant established a parental bond with the child during those years. The trial court held as a matter of law that section 742.14 applies to relinquish Appellant’s her parental rights because she and Appellee do not fit within the statutory definition of a commissioning couple....
...We do not believe that it is necessary to remand this case, as the dissent argues, for further proceedings and more appeals when it is clear that application of the statute unconstitutionally deprives Appellant of her parental rights to her child. We conclude that section
742.14, as interpreted and applied by the trial court and as interpreted by the dissent, is unconstitutional because it deprives Appellant of her constitutional rights to equal protection and privacy. B. Section
63.042(3) does not Support the Trial Court’s Ruling that Section
742.14 Deprives Appellant of her Parental Rights Appellee argues that the Legislature disapproves of children being conceived in the manner utilized by her and Appellant and that this disapproval is evident in the provisions of section
63.042...
...Accordingly, we reverse the final summary judgment and remand this case to the trial court to determine, based on the best interests of the child, such issues as custody, visitation, and child support. We certify to the Florida Supreme Court the following question as a matter of great public importance: Does application of section 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 parental partners and who did parent the child for several years after its birth rend...
...In count four, she requested that chapter 382, Florida Statutes (2009), The Florida Vital Statistics Act, be declared unconstitutional because it infringed on her right to privacy by preventing recordation of her name on the birth certificate. In count five, she requested that the court declare unconstitutional section 742.14, Florida Statutes (2009), because it violated her equal protection and privacy rights....
...ed the genetic father to rebut the presumption that the gestational mother's husband was the legal father but it did not allow the genetic mother to rebut the presumption that the gestational mother was the legal mother). . The dissent suggests that section 742.14 is not discriminatory in a meaningful way and merely "places broad limits on the right of all citizens to make a parentage claim after donating genetic material to another.” However, the dissent does not explain why it is permissible to interpret section 742.14 to provide an exception that allows an unmarried male who donates his sperm to retain his parental rights when he is an intended parent, *799 while not allowing an unmarried female who donates her ova to retain her parental rights when she is an intended parent....
CopyCited 2 times | Published | Florida 5th District Court of Appeal | 2011 Fla. App. LEXIS 20502, 2011 WL 6437247
...See Volusia County v. Aberdeen at Ormond Beach, L.P.,
760 So.2d 126, 130 (Fla.2000); Krol v. City of Orlando,
778 So.2d 490, 491 (Fla. 5th DCA 2001). Appellee advances several arguments in support of the summary judgment in her favor. She argues that section
742.14, Florida Statutes, denies an ovum donor any parental rights to the child....
...logical mother and a birth mother and that there is nothing in the provisions of chapter 742 that applies to deny her parental rights to her child. Alternatively, Appellant challenges the constitutionality of chapter 742, including the provisions of section 742.14. Appellant also argues that the implied consent form did not include a binding waiver of her parental rights. Our analysis reveals that there is nothing in chapter 742, and specifically section 742.14, that addresses the situation where the child has both a biological mother and a birth mother who were engaged in a committed relationship for many years and who decided to have a child to love and raise together as equal parental partners....
...ppellee's womb, in order to conceive a child that they would raise together as parental partners. After the child was born, both women were parents to the child and equally cared for the child for several years. II. Application and Interpretation of Section 742.14 by the Trial Court and the Dissent. The trial court held that Appellant is a "donor" of her ova and that the provisions of section 742.14 apply to deny Appellant parental rights to her child. Section 742.14 provides that: Donation of eggs, sperm, or preembryos The donor of any egg, sperm, or preembryo, other than the commissioning couple or a father who has executed a preplanned adoption agreement under s....
...t case. This interpretation and application of the statute violates Appellant's constitutional rights to equal protection and privacy. Therefore, based on the trial court's interpretation of the statute, we must reverse the judgment under review. A. Section 742.14 as Interpreted and Applied by the Trial Court Renders the Statute Unconstitutional Because It Violates Appellant's Constitutionally Protected Rights....
...4th DCA) (citing Skinner and recognizing that procreation is a right that has been designated by the United States Supreme Court as a fundamental right guaranteed by the Constitution), review denied,
666 So.2d 144 (Fla. 1995). Here, Appellee clearly failed to meet her burden of showing that section
742.14 withstands strict scrutiny and does not violate the constitution....
...We totally reject the argument made in the dissent that Appellant never had any parental rights and that the strict scrutiny test is, therefore, inapplicable. The very statute the trial court applied to deprive Appellant of her parental rights recognizes her parental rights to her child. Section 742.14 specifically states, in pertinent part, that "the donor of any egg ......
...Moreover, chapters 63 and 382 do not establish parentage or parental rights. Chapter 742, entitled "Determination of Parentage," is the statutory vehicle by which paternity is established for children born out of wedlock, see section
742.10(1), Florida Statutes, and it is the provisions of section
742.14 that have been applied by the trial court and argued by Appellee to deny Appellant parental rights to her child....
...ilization was a remote thought in the minds of the scientists of the times has much currency today. Yet the dissent uses this purported ancient rule as its basis for arguing that Appellant never had any parental rights to begin with and that even if section 742.14 is inapplicable, she has no parental rights in the end....
...The citation of two decisions from other jurisdictions that adopt what the dissent purports to be a common law rule that the Florida courts have not adopted fails to answer the question of what rights Appellant had that are relinquished by application of section 742.14....
...1042 (1923), `basic civil rights of man,' Skinner v. Oklahoma,
316 U.S. 535, 541,
62 S.Ct. 1110, 1113,
86 L.Ed. 1655 (1942), and `rights far more precious than property rights,' May v. Anderson,
345 U.S. 528, 533,
73 S.Ct. 840, 843,
97 L.Ed. 1221 (1953). Pursuant to the trial court's application of section
742.14, the "essential" right of Appellant to "bear or beget a child" are statutorily relinquished....
...that the gestational mother is the legal mother of a child to the exclusion of the intended genetic mother because it infringed the genetic mother's rights to procreate and parent her child). In addition, pursuant to the trial court's application of section 742.14, Appellant's right to form a parental relationship with her child and to continue to participate in raising the child as a parent as she had done for several years after the child was born are statutorily relinquished....
...Appellant had relinquished her parental rights to her child. We believe that Appellant has constitutionally protected rights as a genetic parent who has established a parental relationship with her genetic offspring that transcend the provisions of section 742.14....
...-child relationship and make uniquely valuable contributions to the child's development."). We conclude that Appellant is entitled to constitutionally protected parental rights to the child and that the statutory relinquishment of those rights under section 742.14 is prohibited by the Federal and Florida Constitutions....
...For the Equal Protection [and Due Process] Clause[s] necessarily limit[] the authority of a State to draw such "legal" lines as it chooses.'" Stanley,
405 U.S. at 652,
92 S.Ct. 1208 (quoting Glona v. Am. Guar. & Liab. Ins. Co.,
391 U.S. 73, 75-76,
88 S.Ct. 1515,
20 L.Ed.2d 441 (1968)). The dissent asserts that section
742.14 provides a reasonable approach to deciding who is, and who is not, entitled to parental rights given the multitude of claims to such rights made possible by assisted reproductive technology....
...The dissent also attempts to skirt the constitutional infirmities of the statute by claiming that the constitutional issues were not adequately addressed in the trial court or in this court. [10] We completely reject *800 that argument. Appellant specifically pled in her complaint that section 742.14 is unconstitutional, and it was adequately argued in the trial court and in this court....
...We hardly think that counting the number of pages in a brief is a viable standard by which to judge whether an issue has been adequately raised in an appellate court. What was inadequately presented, because it was not presented at all, was any attempt on the part of Appellee to meet her burden of showing that section 742.14 withstands strict scrutiny and is constitutional....
...e so both women could have a child to raise as equal parental partners; they did so for several years after the child was born; and Appellant established a parental bond with the child during those years. The trial court held as a matter of law that section 742.14 applies to relinquish Appellant's her parental rights because she and Appellee do not fit within the statutory definition of a commissioning couple....
...We do not believe that it is necessary to remand this case, as the dissent argues, for further proceedings and more appeals when it is clear that application of the statute unconstitutionally deprives Appellant of her parental rights to her child. We conclude that section
742.14, as interpreted and applied by the trial court and as interpreted by the dissent, is unconstitutional because it deprives Appellant of her constitutional rights to equal protection and privacy. B. Section
63.042(3) does not Support the Trial Court's Ruling that Section
742.14 Deprives Appellant of her Parental Rights Appellee argues that the Legislature disapproves of children being conceived in the manner utilized by her and Appellant and that this disapproval is evident in the provisions of section
63.042...
...Accordingly, we reverse the final summary judgment and remand this case to the trial court to determine, based on the best interests of the child, such issues as custody, visitation, and child support. We certify to the Florida Supreme Court the following question as a matter of great public importance: Does application of section 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 parental partners and who did parent the child for several years after its birth rend...
...While I fully appreciate the scholarly analysis declaimed in the dissent, I am convinced of the correctness of the position set forth in the majority opinion of Judge Sawaya, and I therefore concur in that opinion. I write in concurrence for two reasons. First, it is clear to me that section 742.14, Florida Statutes (2009), simply does not apply to the fact situation presented to us by this case....
...But, because these principles frame the legal issue in this case, I believe it important to a clear legal analysis to have them firmly in mind before proceeding further. Next, I will explain why I believe the majority misses the mark in its analysis of the controlling statute in this case, section 742.14, Florida Statutes (2008), both in terms of the law constraining our appellate review and in its construction of the statute itself....
...[17] The majority neither suggests that we should recede from our own precedent on this issue, nor certifies conflict with the many cases from other district courts applying this precedent. Additionally, the majority does not indicate that it is in any way granting relief based upon Appellant's claim that section 742.14, Florida Statutes, is unconstitutional in that it infringes on her "right to privacy" by denying her "the right to parent a child for whom she is a de facto parent." Therefore, although the majority opinion emphasizes the facts demonst...
...l bond that Appellant developed with the child, it is important to note that these bonds do not form a basis for extending parental rights to Appellant under well-established Florida law, and do not form the basis for any constitutional challenge to section 742.14....
...This brings us to a final, essential point of agreement that I share with the majority. *809 That is, if Appellant does have a claim of parental rights to Appellee's child, it must be by virtue of her genetic link to the child, i.e., by virtue of her egg donation. II. Section 742.14, Florida Statutes. A. Section 742.14, Florida Statutes, Clearly and Unambiguously Bars Appellant's Parentage Claim Based Upon Her Egg Donation. According to the majority, "there is nothing in chapter 742, and specifically section 742.14, that addresses" the issue we must resolve. This is the point on which I respectfully but most strongly disagree with the majority. The issue, again, is whether Appellant can claim parental rights based upon her genetic link to the child, brought about by her egg donation. Section 742.14, Florida Statutes (2008), provides that: [T]he donor of any egg, sperm, or preembryo ......
...shall relinquish all maternal or paternal rights and obligations with respect to the donation or the resulting children. [18] The statute offers only two exceptions, and Appellant concedes that she does not qualify for either. [19] As such, Appellant effectively concedes that section 742.14, by its plain language, bars her claim....
...bvious meaning.") (quoting A.R. Douglass, Inc. v. McRainey,
102 Fla. 1141,
137 So. 157, 159 (1931)). In my view, the statute could not have been drafted any more clearly. That was the trial court's conclusion as well. However, the majority sidesteps section
742.14 by interpreting the word "donor" in a manner so as to not encompass Appellant....
...eal or review must be part of that presentation if it is to be considered preserved." Tillman v. State,
471 So.2d 32, 35 (Fla.1985). Appellant in this case never argued to the *810 trial court that she was not an egg "donor," as that term is used in section
742.14, Florida Statutes, or that the term "donor" has the special meaning attributed to it by the majority....
...State,
823 So.2d 757 (Fla.2002) (recognizing an appellant's failure to make an argument in an initial brief acts as a procedural bar to consideration of the issue on appeal). Rather, on appeal as before the trial court, Appellant accepted that she was a "donor," as that term is used in section
742.14....
...sed upon her genetic link to the child. But, it did so based upon its reading of California's version of the Uniform Parentage Act ("UPA"), id. at 681 n. 6 ("We simply follow the dictates of the UPA."), which does not contain any language similar to section 742.14, Florida Statutes, barring an egg donor from claiming parental rights based upon her donation....
...and courts should avoid readings that would render part of a statute meaningless." State v. Goode,
830 So.2d 817, 824 (Fla.2002). After broadly barring any egg or sperm donor from claiming parental rights to a *813 child resulting from the donation, section
742.14 sets forth two narrow exceptions....
...63.212," Florida Statutes. Clearly, a man who provides sperm pursuant to a preplanned adoption agreement had no subjective intent to relinquish control of his sperm or any child conceived from his sperm. So, applying the majority's definition of "donor," the bar of section 742.14 would never have applied to the man in the first place....
...urpose of the Statute. "[S]tatutory enactments are to be interpreted so as to accomplish rather than defeat their purpose." Reeves v. State,
957 So.2d 625, 629 (Fla.2007) (quoting Lewis v. Mosley,
204 So.2d 197, 201 (Fla.1967)). In very plain terms, section
742.14 prohibits a person from providing an egg or sperm for use by another, and then claiming parental rights to any resulting children, with two narrow exceptions....
...arental rights. Disputes like this, creating uncertainty where the legislature seems to have intended to assure certainty, are likely in the future under the majority's construction of the statute. In short, if I am correct as to the purposes behind section 742.14, the majority's construction is erroneous because it defeats the statute's purposes....
...his or her donated egg or sperm, if that is what he or she subjectively wants. To me, that renders the entire statute something of an absurdity in that it accomplishes nothing. *815 Of course, Appellant never argued for this extraordinary reading of section 742.14....
...That is why the only real issue, as framed by Appellant's pleadings below, was her claim that this statute is unconstitutionalwhich I will address next. III. Constitutional Issues. As a fall-back position, the majority concludes that if Appellant is an egg "donor," as that term is used in section 742.14, then the statute still cannot be applied to bar her parentage claim because it is unconstitutional. As a preliminary matter, it is not clear to me why Appellant and the majority believe that avoiding section 742.14 will automatically result in a legal finding that she is entitled to parental rights....
...n the genetic mother and the gestational mother." Coleman, supra, at 524 (footnotes omitted). Again, the majority does not suggest that it is modifying the common law rule, or what new rule of law it is announcing. Setting this issue aside, however, section 742.14 should not be declared unconstitutional because Appellant has demonstrated no basis to do so. A. Appellant Has Neither Demonstrated Any Basis on Which to Declare Section 742.14 Unconstitutional Nor Preserved Any Constitutional Argument for Review....
...[and the] party challenging a statute has the burden of establishing its invalidity." Peoples Bank of Indian River Cnty. v. State, Dep't of Banking and Fin.,
395 So.2d 521, 524 (Fla.1981) (citations omitted). In her complaint, Appellant alleged that section
742.14 violated her rights under the Equal Protection Clauses of the United States and Florida Constitutions, [21] and that it infringed upon her right to privacy under the Florida Constitution....
...[22] However, the record does not reflect that Appellant ever advanced any coherent legal theory, analysis or argument in support of these constitutional claims. As such, there is no basis to reverse the trial court's order based upon a constitutional challenge to section 742.14....
...t of that presentation'") (quoting Archer v. State,
613 So.2d 446, 448 (Fla.1993), cert. denied,
519 U.S. 876,
117 S.Ct. 197,
136 L.Ed.2d 134 (1996)). The majority dismisses this point, stating that Appellant "specifically pled in her complaint that section
742.14 is unconstitutional, and it was adequately argued in the trial court ...." (emphasis added). To be crystal clear, the record below contains absolutely no argument from Appellant in support of the three paragraphs in her complaint challenging the constitutionality *816 of section
742.14. As for the complaint itself, Appellant alleged only an "asapplied" challenge to section
742.14 on privacy grounds....
...te"; (2) that this constitutes a facial challenge to the statutes presenting a "mixed question of fact and law" on which "the parties need to present evidence"; (3) that "the trial court had the duty to conduct an evidentiary hearing to determine if § 742.14 was constitutionally and facially applicable"; (4) that we should remand for the trial court to consider the "detriment to the child" at an evidentiary hearing; [24] (5) that a "`serious procedural problem' arises when the parties attempt t...
...The Majority's Constitutional Analysis is Questionable. Attempting to demonstrate a conclusion using a premise that assumes the conclusion as true is called "circular reasoning" or circulus in probando. [25] It is the primary means by which the majority attempts to demonstrate section 742.14 to be unconstitutional when it argues that "there can be no doubt that Appellant is a parent of the child and her parental rights must be accorded the full measure of protection provided by the Federal and Florida Constitutions." [26]...
...See, e.g., In re Marriage of J.B. and H.B., 326 S.W.3d 654, 675 n. 9 (Tex.App.2010) ("In legal analysis, as in mathematics, it is fundamentally erroneous to assume the truth of the very thing to be proved.") (citation omitted). The majority also declares section 742.14 unconstitutional as violative of Appellant's "fundamental" right "to procreate," citing to Skinner v....
...See, e.g., Carey v. Population Servs., Int'l,
431 U.S. 678,
97 S.Ct. 2010,
52 L.Ed.2d 675 (1977) (dealing with a women's right to bear a child, or not, in her own body). This case has nothing to do with either of these fundamental privacy interests. In fact, section
742.14 in no way limits Appellant's opportunity to use assisted reproductive technology to conceive and bear her own child, in her own body....
...to control her own body? The answer seems clear to me. Third, I would point out that the majority's strict scrutiny analysis founded upon a fundamental right of procreation still suffers from the logical fallacy that afflicts its pronouncement that section 742.14 interferes with Appellant's fundamental rights as a parent....
...At the end of the day, it is this principle that the majority must rely upon. Because, what the majority is really saying is that the Florida Legislature cannot dictate to a citizen that he or she live life constrained by the traditional notions of family implicit in Florida law. Section 742.14, consistent with the rest of Florida's relevant statutory law, is drafted so that each child has only one legal mother and one legal father....
...In my view, it is somewhat reckless to recognize the right of procreation through assisted reproductive technology without any real analysis, in a case where the issue was never raised below or briefed on appeal. [29] Fifth, I would point out that invalidating section 742.14 as a violation of Appellant's fundamental right to procreate (using ARTs) does effectively place the use of assisted reproductive technology "outside of the arena of public debate and legislative action." To me, the question of parenta...
...Rather, "the burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it, whether or not the basis has a foundation in the record." Id. at 320-21,
113 S.Ct. at 2643 (citation omitted). Id. If we were to entertain a constitutional challenge to section
742.14 under the rational basis test, it would end herebecause Appellant has made no effort to "negative" any basis which might support the statute....
...In count four, she requested that chapter 382, Florida Statutes (2009), The Florida Vital Statistics Act, be declared unconstitutional because it infringed on her right to privacy by preventing recordation of her name on the birth certificate. In count five, she requested that the court declare unconstitutional section 742.14, Florida Statutes (2009), because it violated her equal protection and privacy rights....
...the genetic father to rebut the presumption that the gestational mother's husband was the legal father but it did not allow the genetic mother to rebut the presumption that the gestational mother was the legal mother). [9] The dissent suggests that section 742.14 is not discriminatory in a meaningful way and merely "places broad limits on the right of all citizens to make a parentage claim after donating genetic material to another." However, the dissent does not explain why it is permissible to interpret section 742.14 to provide an exception that allows an unmarried male who donates his sperm to retain his parental rights when he is an intended parent, while not allowing an unmarried female who donates her ova to retain her parental rights when she is an intended parent....
...oduction, 17 Cardozo L.Rev. 497, 524 (1996) ("The common law presumes that the birth mother is the legal mother of the child."). [15] The majority does repeatedly posit that Florida's legislature abrogated this rule by using the word "relinquish" in section 742.14....
...lear in that regard. Unless a statute unequivocally states that it changes the common law, or is so repugnant to the common law that the two cannot coexist, the statute will not be held to have changed the common law. Id. at 918 (citations omitted). Section 742.14 does not reference the common law rule that the birth mother is the legal mother, much less explicitly, clearly or unequivocally state that it is changing it....
...The majority is really arguing that by choosing the word "relinquish" to describe the legal effect of an egg donation, the legislature has impliedly recognized a different common law rule. First, I do not believe that the word "relinquish" implies any such thing. Relinquish means to give up. All that section 742.14 says is that when you give up your genetic material, you also give up any legal claims that you could have made before your donated it....
...The statute defines a commissioning couple as "the intended mother and father" of the child. §
742.13(2), Fla. Stat. (2008). [20] Cf. Lamaritata,
823 So.2d at 318-19 (holding that a man referred to as "donor" in contract for sperm donation was a sperm donor, not a parent, and had no parental rights under section
742.14)....
...in writing, according to the opinion) that the man could retain a vestige of parental rightsvisitation with his "biological" child. In my view, the primary difference between the two cases is that the Lamaritata court applied the plain language of section 742.14 and held that the man was not a parent, and the majority in this case does not....
CopyPublished | Florida 2nd District Court of Appeal
...Brito moved out of the
marital home and took the child with her. Mr. Rivera subsequently
petitioned the trial court for a determination of paternity. The trial court
denied the petition, concluding that Mr. Rivera did not have standing to
petition for paternity based on its interpretation of section
742.14, Florida
Statutes (2020).
DISCUSSION
Mr. Rivera argues that the trial court erroneously applied section
742.14 when it concluded that Mr. Rivera did not have standing to petition
for paternity. He concedes that the trial court correctly followed A.A.B. v.
B.O.C.,
112 So. 3d 761 (Fla. 2d DCA 2013), a case that applied section
742.14 to an almost identical set of facts, but he argues that this court
should recede from A.A.B....
...See §
742.11 (establishing irrebuttable
presumption that child born within wedlock conceived by artificial or in
vitro insemination or by means of donated eggs or preembryos is the
child of the husband and wife); §
742.12 (use of scientific testing to
determine paternity); §
742.13 (definitions); §
742.14 (relinquishment of
maternal or paternal rights by the donor of sperm, eggs, or preembryos);
§
742.15 (contract required for surrogacy); §
742.16 (petitions for
affirmation of parental status); and
742.17 (disposition of eggs, sperm,
and preembryos).
The instant case is primarily concerned with section
742.14,1
which provides, in pertinent part: "The donor of any egg, sperm, or
preembryo, other than the commissioning couple[2] or a father who has
1 Section
742.14 has not been amended since it was created in
1993, except once to update the section number of the preplanned
adoption agreement statute.
2 "Commissioning couple" is defined as "the intended mother and
father of a child who will...
...are not subject to the mandatory relinquishment of their parental rights.
This straightforward reading of the statute was confirmed in D.M.T.
D.M.T. came to the supreme court following the Fifth District's
determination in T.M.H. v. D.M.T.,
79 So. 3d 787 (Fla. 5th DCA 2011),
that section
742.14 was unconstitutional as applied....
...l court held that
although T.M.H. was the donor, she was not protected by the
"commissioning couple" exception and, pursuant to the statute, had
relinquished her parental rights. T.M.H.,
79 So. 3d at 789-90. The Fifth
District reversed, holding that section
742.14 was unconstitutional as
applied: "Interpretation and application of this statute by the trial court
to deny Appellant parental rights to her child cannot withstand strict
scrutiny and violates Appellant’s constitutional rights to equal protection
and privacy under the United States and Florida Constitutions."
79 So.
3d at 793 (footnotes omitted).
Curiously, however, the Fifth District also held that T.M.H. was not
a "donor" as used in section
742.14 because she was also the child's
parent.5 Id....
...3d at
333; however, it approved the Fifth District's conclusion that the statute
was unconstitutional as applied, id. at 341. In short, because T.M.H. did
not qualify as a member of a "commissioning couple" because the term is
limited to "the intended mother and father," "that application of section
742.14 forces the automatic statutory relinquishment of T.M.H.’s 'right to
5 We are perplexed by this holding....
...also involved the use of "assisted
reproductive technology," i.e., the laboratory handling of a human egg.
Here, Mr. Rivera is obviously the donor, but he cannot qualify under
either of the statute's exceptions, so the definitions of "commissioning
couple" and "assisted reproductive technology" are not relevant here.
Section 742.14 was written to address this precise scenario.
Simply put, a sperm donor who is not a member of the commissioning
couple and has not executed a preplanned adoption agreement waives
any right to interfere with the child’s upbringing....
...parents" instead of "the intended mother and father," this issue never
would have arisen.
6
statute compels this conclusion, and the supreme court's rationale in
D.M.T. supports it:
We recognize the important role section 742.14 plays in
protecting couples seeking to use assisted reproductive
technology to conceive a child from parental rights claims
brought by typical third-party providers of the genetic
material used in assisted repro...
...the State’s corresponding interest in furthering that objective.
This case, however, does not implicate those concerns.
129 So. 3d at 340. Unlike in D.M.T., the instant case does implicate
those concerns, and there is no constitutional impediment to the
application of section
742.14 under these facts.
CONTROLLING PRECEDENT
In A.A.B....
...subsequently filed
suit to establish paternity and visitation with the child. Id. at 762.
The trial court held that because the couple had used an at-home
"do-it-yourself" insemination procedure as opposed to doing it in a
clinical or laboratory setting, section 742.14 did not apply. Id. Based on
this finding, the trial court held that B.O.C. was entitled to petition for
paternity. Id. This court reversed:
A plain reading of section 742.14 reveals that the donor of
any sperm shall relinquish all paternal rights and obligations
with respect to the resulting children....
... a preplanned adoption agreement under the adoption
statutes.
Id. at 762-63. Because B.O.C., like Mr. Rivera in the instant case, did
not qualify under either exception, he automatically relinquished his
parental rights under the statute.
Importantly, nothing in section 742.14 requires that the birth
mother be inseminated using "assisted reproductive technology" for its
conditions to apply....
...At some point in time following the child's birth,
Enriquez petitioned to establish paternity and timesharing. Velazquez
did not oppose the petition.
Despite the parents'7 apparent general agreement on the important
issues, the trial court sua sponte concluded that section 742.14 barred
7 Based on the facts described in the opinion, it appears to be
without question that Enriquez and Velazquez were the biological
parents of the child and had conducted themselves as the child's parents
since it was conce...
...The Fifth
District affirmed the trial court's finding "that the parties' 'at-home, do-it-
yourself method of artificial insemination' did not involve the 'laboratory
handling of human eggs or preembryos.' " Id. Despite this, the Fifth
District held that "section
742.14 applies to paternity actions only when
the child was born as a result of assisted reproductive technology." Id. at
150-51 (emphasis added). In reaching this conclusion, the Fifth District
appears to have relied heavily on the supreme court's repeated references
to section
742.14 as "the assisted reproductive technology statute" in
D.M.T.
[T]he supreme court referred to section
742.14 as the
"assisted reproductive technology statute" eleven times[] and
. . . explicitly held that in enacting section
742.14, "the
Legislature articulated a policy of treating all individuals who
provide eggs, sperm, or preembryos as part of assisted
reproductive technology as 'donor[s]' bound by the terms of
the statute."
Enriquez,
350 So. 3d at 151 (footnote omitted) (quoting D.M.T.,
129 So.
3d at 333).
It is here where we part company with our sister court. As Judge
Sasso said in her cogent dissent, the majority's interpretation of section
742.14 changes "[t]he donor of any egg, sperm, or preembryo" into "[t]he
donor who provides as a part of assisted reproductive technology any
egg, sperm, or preembryo." Id....
...at 155-56 (Sasso, J., dissenting).
CONCLUSION
We reiterate our holding in A.A.B.: The do-it-yourself manner in
which the artificial insemination was accomplished does not alter the
fact that Mr. Rivera was a sperm donor under section 742.14, and
section 742.14 does not require artificial insemination to be performed in
a clinical or laboratory setting to apply. Accordingly, we affirm the order
denying Mr. Rivera's petition for paternity and certify conflict with
Enriquez insofar as it holds that "section 742.14 applies to paternity
actions only when the child was born as a result of assisted reproductive
technology." 350 So....
