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The Florida Bar
www.floridabar.org
The Florida Bar Journal
February, 2014 Volume 88, No. 2
The “Progeny” of Florida’s Reproductive Technology Statutes

by Odette Marie Bendeck

Page 18

A series of statutes self-styled as addressing “reproductive technology” became law without the governor’s approval on May 15, 1993.1 F.S. §§742.13, 742.14, 742.15, 742.16, and 742.17 took effect on June 30, 1993. These statutes addressed a variety of issues, including gestational surrogacy contracts and inheritance rights for children conceived from eggs or sperm of an individual who died before the transfer of genetic material to a woman’s body was complete. However, the only topic to have generated any appellate activity centers on parental rights and responsibilities of egg and sperm donors.

At the center of this controversy is the initial sentence of a two-sentence statute — namely F.S. §742.14 — which reads in its entirety as follows:

742.14. 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. 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.2

At a glance, the statute simply establishes that sperm and egg donors have no legal relationship to a resulting child. In the absence of a legal relationship, the sperm or egg donor has no child support obligation and no timesharing rights. This concept is simple and uncontroversial in the context of strangers providing genetic material to strangers with no expectation of having a joint presence in the resulting child’s life.

While the legislature may have intended that this “simple” statute decrease or foreclose litigation about the consequences of egg or sperm donation, it has become the focus of heated disputes between same-sex couples with children and between single biological mothers and the men who agree to help them become pregnant.

Exceptions to F.S. §742.14
The statute creates two exceptions to the rule that there is no legal relationship between the donor and child: donations from a “commissioning couple” and donations covered by a preplanned adoption agreement. There are no reported cases construing the portion of the statute concerning preplanned adoption agreements. Instead, the controversies have centered on the exception to the no-legal-relationship rule for a “commissioning couple” and, strangely enough, on precisely how conception took place.

F.S. §742.13 sets forth definitional terms as follows:

As used in ss. 742.11-742.17, the term:

(1) “Assisted reproductive technology” means those procreative procedures which involve the laboratory handling of human eggs or preembryos, including, but not limited to, in vitro fertilization embryo transfer, gamete intrafallopian transfer, pronuclear stage transfer, tubal embryo transfer, and zygote intrafallopian transfer.

(2) “Commissioning couple” means 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.3

In the decades since these statutes became law, the trial and appellate courts have been called upon to decide cases between formerly intact nontraditional families, some of whom went to great lengths to protect the relationships between the parents and children involved. On the other end of that spectrum are the cases wherein the parties went to great lengths to prevent any suggestion of a parental connection.

The opinions reflect a tremendous struggle to align contract terms with statutory construction and the perceived best interests of the children involved. The decisions also demonstrate the frustration of the clear intent of contracts, whether entered into by same-sex couples desiring to co-parent children and to keep their families intact should they cease residing together, or entered into by parties attempting to prevent the creation of familial rights and obligations.

Wakeman v. Dixon
A classic example of this struggle is found in Wakeman v. Dixon, 921 So. 2d 669 (Fla. 1st DCA 2006), rev. den., 931 So. 2d 902 (Fla. 2006). Although this case did not squarely address the reproductive technology statutes, it serves as a backdrop to later cases that confront similar issues under the statutory framework. The facts are outlined in detail below in order to demonstrate the impact of the ruling.

A lesbian couple, Wakeman and Dixon, decided to have children after having lived together for several years. They both signed a sperm donation agreement, as did the sperm donor, wherein both women were described as the “recipient,” “mother,” and “co-parent” in that agreement, and the sperm donor relinquished parental rights in the agreement. The contract specified that in the event of the death or disability of a mother of any children born through artificial insemination, the best interests of any children would be served by having the children remain with the co-parent. They designated each other as the co-parent for any child born to either of them and expressly stated that it was contemplated that any children would reside with them as mother and co-parent. The contract stated that both parties were contemplated to become “psychological parents” to any of their children.4

After Dixon gave birth to a child, the parties executed a series of additional documents which:

• Acknowledged that the decision to conceive was a joint decision based on a commitment to jointly parent the child;

• Provided that Wakeman would contribute to the financial support of the child;

• Stated that both parties committed to equally share in providing the child with necessary support until majority;

• Recognized Wakeman as a de facto parent who had participated in all prenatal care;

• Agreed that Wakeman’s relationship would be protected and promoted;

• Specified that, in the event the parties no longer resided together, the parties would continue to provide for the child in the manner described in the agreement; that each would continue to facilitate a close relationship with the other; and that they would continue to raise the child jointly;

• Named Wakeman as the guardian for the child;

• Granted Wakeman the authority to make health care decisions for the child; and

• Named Wakeman as Dixon’s attorney-in-fact to manage the affairs relating to the child and to serve as health care surrogate for the child.5

After Dixon gave birth to a second child, identical documents were drafted with regard to this child. Thereafter, both women executed an affidavit of domestic partnership which allowed Dixon and the two children to receive coverage under Wakeman’s health insurance.6

Despite all of the expressions of intent and the contractual precautions that were taken by Dixon and Wakeman, litigation ensued when the parties ceased living together and Dixon relocated with the two children to another city. Wakeman filed suit seeking relief under a variety of legal theories, including declaratory relief of her parental rights. Dixon responded with a motion to dismiss, arguing that Wakeman had no enforceable legal rights to the children.

The trial court granted the motion to dismiss finding that, while a compelling argument had been made that it was in the best interest of the children to enforce the co-parenting agreements, the court lacked statutory or case law precedent to compel visitation between a child and a person who is not a parent. On appeal, Wakeman argued that the contracts conferred upon her the status of a parent, and, therefore, she was entitled to protection as a parent under F.S. Ch. 61. The First District affirmed the trial court holding:

We agree with the trial court that, under Florida law, absent evidence of detriment to the child, courts have no authority to grant custody or to compel visitation by a person who is not a natural parent and that agreements providing for visitation by a non-parent are unenforceable.7

The decision relies on the many cases establishing that a parent’s fundamental rights to a child precluded even grandparental visitation.8 The opinion also indicates that its holding is controlled by its prior decision in Music v. Rachford, 654 So. 2d 1234 (Fla. 1st DCA 1995), in which it held that Ch. 61 does not allow nonparents to seek custody or visitation.9 The appellate court rejected the argument that the agreements granted Wakeman the status of a parent, again emphasizing that a court has no inherent authority to award visitation or compel visitation between a child and a nonparent.10 The opinion also cites with approval the decision by the Second District in Lamaritata v. Lucas, 823 So. 2d 316 (Fla. 2d DCA 2002), discussed below.

Lamaritata v. Lucas
In Lamaritata v. Lucas, 823 So. 2d 316 (Fla. 2d DCA 2002), rev. den., D.A.L. v. L.A.L., 835 So. 2d 266 (Fla. 2002), the biological parents of the child had entered into a written agreement specifying that the donor/father would have no parental rights or obligations if the mother became pregnant through artificial insemination. Nevertheless, after the mother gave birth to twins, the biological father filed a paternity action. He attempted to avoid his relinquishment of rights by arguing that he and the mother constituted a “commissioning couple” and, therefore, the statute did not operate to bar his rights as a parent. The opinion rejects this argument, finding that the parties had no relationship “that would fall under the rubric of ‘couple.’” They did not contract to raise the children together as a “mother and father,” as contemplated by the statutory definition of a commissioning couple.11

The opinion is also noteworthy for its broad rejection of the contractual arrangements between the parties. In three quotable sentences, the Second District made clear that such contracts will not be enforced:

• “A person who provides sperm for a woman to conceive a child by artificial insemination is not a parent.”

• “If the sperm donor has no parental rights, the sperm donor is a non-parent, a statutory stranger to the children.”

• “Even though the parties entered into subsequent stipulations, purportedly to give visitation rights to this non-parent, we conclude that agreement is not enforceable.”12

In support of these propositions, the opinion cites several cases holding that nonparents are not entitled to visitation rights. Included among those nonparents are individuals who had relationships to children as stepparents, “psychological parents,” and grandparents.13 The broad-based holding includes a reference to the Fifth District’s opinion in Taylor v. Kennedy, 649 So. 2d 270, 271-272 (Fla. 5th DCA 1994), rev. den., Affourtit v. Taylor, 659 So. 2d 1085 (Fla. 1995), for the proposition that “Florida courts do not recognize a claim for specific performance of a contract for visitation in favor of a nonparent.”14 Thus, even though Lamaritata and Lucas, as the biological parents of the child, had agreed to timesharing for Lucas, the appellate opinion utilized the severability clause in the contract to sever that portion as unenforceable.

This was the second appearance of these parties before the Second District. The first opinion was reported under their initials as L.A.L. v. D.A.L., 714 So. 2d 595 (Fla. 2d DCA 1998). In this first appeal, the Second District granted the petition for a writ of certiorari and quashed the order requiring the parties to submit to paternity testing. The trial court was directed to first determine whether F.S. §742.14 applied to preclude the paternity action and to determine the enforceability of the contract before making any resolution concerning the biological fatherhood of the children.

The reasoning in the L.A.L. opinion is noteworthy for its “benefit of the bargain” analysis, particularly when compared to other decisions that similarly impact whether the parties to these contracts receive the benefit of the bargains negotiated. In the L.A.L. case, the Second District reasoned that the mother was entitled to rely on the agreement and the statute “to prevent unmasking the identity of her twin boys’ paternity by scientific testing.”15 She was entitled to rely on her agreement and the statute until the trial court found that the statute did not apply or that the agreement was not enforceable. The opinion holds “whether any biological connection exists between the donor and these boys is unquestionably irrelevant to the proceedings at this juncture.”16

Method of Conception in Application
In other cases decided since the enactment of the statutes, the dispositive factor was the method of conception. In the two cases discussed below, one from the Fourth District and one from the Second District, the parties reached agreements before the child was conceived. How those agreements ultimately impacted the decisions is surprising.

Budnick v. Silverman
Budnick v. Silverman, 805 So. 2d 1112 (Fla. 4th DCA 2002), rev. dismissed, Silverman v. Budnick, 828 So. 2d 389 (Fla. 2002), presents a fact pattern right out of the movie The Big Chill.17 Budnick wanted to become pregnant in the “usual and customary manner” rather than through artificial insemination and she approached her friend Silverman to be the biological father. The parties executed a preconception agreement specifying that if Budnick became pregnant by Silverman, she would be the sole custodian and solely responsible for expenses, and she would refrain from putting his name on the birth certificate, and initiating a paternity action. The agreement also provided that if Budnick did not adhere to the contract terms, Silverman had the discretion to “assume full and complete and permanent custody and guardianship of the child of this pregnancy.”18

Ten years after the birth of the child, Budnick filed a paternity action seeking child support from Silverman and sole parental responsibility for the child, claiming the agreement was against public policy. Silverman sought to avoid the child support obligation, claiming that he should not be treated as the natural father of the child, but rather as a sperm donor under F.S. §742.14.

The Fourth District rejected Silverman’s argument, reasoning that the statute concerned reproductive technology and not “impregnation by the usual and customary manner”: “Impregnation by the ‘usual and customary manner’ has been around long enough so that it does not constitute ‘reproductive technology.’ Therefore, we do not read section 742.14 to apply to a conception that happened the old-fashioned way.”19 So, despite the preconception agreement’s express language relieving Silverman of any obligation for child support, the fact that his sperm had been delivered to the mother “the old-fashioned way” resulted in those contract protections failing.20

Silverman succeeded, however, in convincing the trial court that the doctrine of laches prevented any child support arrearage from being imposed against him. The trial court found that the 10-year delay had deprived Silverman of his rights because he had relied on the agreement. The Fourth District, however, took the exact opposite view. The opinion reasons that the defense of laches requires a lack of knowledge that the other party would assert the right upon which the lawsuit is founded. Because Silverman included the provision in the agreement that he could assume custody of the child if Budnick sought child support, the Fourth District concluded that “such stiff measures strongly suggest that [Silverman] expected [Budnick] to try to gain child support at some point in the future.”21 The combined effect of these rulings resulted in Budnick obtaining each and every benefit of her bargain, with significant additional financial compensation, while Silverman received no benefit of the bargain whatsoever — all because the conception had not been achieved through clinical measures, although in every other respect it was a classic sperm donor scenario.

A.A.B. v. B.O.C.
After the Fourth District in Budnick decided that §742.14 does not apply to conception achieved in the “usual and customary manner,” the Second District had occasion to determine whether the statute applies in cases in which the child conceived is neither the result of usual and customary impregnation nor the result of clinical intervention. In A.A.B. v. B.O.C., 112 So. 3d 761 (Fla. 2d DCA 2013), a same-sex couple conceived a child through “do-it-yourself” artificial insemination using the biological mother’s egg, which was fertilized by sperm from her same-sex partner’s brother. The opinion states that an oral agreement was in place that the brother had agreed to be a sperm donor only so that his sister and her partner could have a child together.

A child was born and co-parented by the same sex couple. After the same-sex couple’s initial break up, they shared the child in a rotating custody arrangement. Later, however, the biological mother severed ties between her former partner and the child. The biological father — and former partner’s brother — then sought to establish paternity and timesharing with the child.

The trial court found that F.S. §742.14 did not preclude a paternity action by the brother/sperm donor because, rather than inseminating through a clinical procedure, the parties had inseminated in a “do-it-yourself” process. In reaching this decision, the trial court refused to recognize the oral agreement that the brother was to be treated as a sperm donor.22 The trial court ruled that the brother had parental rights, and established a parenting plan and child support.23

The Second District reversed, holding that the “do-it-yourself” insemination did not alter the status of the brother as a sperm donor under the statute. In reaching this decision, the opinion notes that “the statute does not require that the artificial insemination be performed in a clinical setting to apply.”24 The opinion makes no effort to square this conclusion with the definitional section of 742.13(1), which defines assisted reproductive technology as “procreative procedures which involve the laboratory handling of human eggs....”25

Query whether the Fourth and Second district’s opinions can be reconciled on the issue of whether the statute is restricted to clinical inseminations. Consider the contrast between Budnick, in which the Fourth District found that conception in the “usual and customary manner” was not covered by a statute on “reproductive technology,” and the Second District’s conclusion in A.A.B. that a decidedly low-tech and nonclinical conception is covered by the very same statute.26

The opinion in A.A.B. cites with approval the Second District’s prior opinion in Lamaritata, which upheld a written agreement that a sperm donor would relinquish parental rights. The fact that the agreement in this case was not in writing did not change the analysis. The opinion notes that the parties abided by the terms of the oral agreement for more than five years before the action was commenced. Once again, consider the contrast in the various opinions on the weight and effect given to contracts entered into by the affected parties.

Janssen v. Alicea
Budnick and A.A.B. both involved litigation in which the biological mother stood in opposition to a male acquaintance who agreed to assist in the mother’s conception of a child without having any expectation of co-parenting the child. A case from the Third District addresses that added factor, when the male friend expected to participate in raising the child. In Janssen v. Alicea, 30 So. 3d 680 (Fla. 3d DCA 2010), a child was born via artificial insemination between a biological mother and biological father who were close friends. The birth certificate listed the names of both the father and the mother. Two years later, the mother moved to California with the child and the father filed an action to establish his paternity.

The mother defended claiming that the father was a sperm donor as contemplated by F.S. §742.14 and that his paternity action was barred. The father argued that the parties were a commissioning couple as defined by the statute and, therefore, he had not relinquished his parental rights. The trial court granted summary judgment in favor of the mother and the case went up on appeal in that procedural posture.

The Third District held that it was error to grant summary judgment because there was a genuine issue of material fact. The father had alleged that the child was the result of a planned pregnancy in which both intended to act as the child’s parents. In contrast, the mother claimed that he was simply asked to be a sperm donor. The decision in Lamaritata was distinguished because there was a contract in the Lamaritata case defining the father’s role as a sperm donor and because there were no facts that would establish a relationship between the parties as a couple. The Janssen opinion makes no specific finding on whether the parties in this case would constitute a commissioning couple, other than stating that it was “possible” that the trial court might make such a conclusion.

D.M.T. v. T.M.H.
All of these cases are eclipsed by the complex facts and constitutional analysis in the Fifth District’s opinion in T.M.H. v. D.M.T., 79 So. 3d 787 (Fla. 5th DCA 2011), which has been affirmed in part and reversed in part by the Florida Supreme Court in D.M.T. v. T.M.H., 2013 WL 5942278 (Fla. Nov. 7, 2013).27 In a case of first impression, the parties in this dispute were the biological mother who provided the egg (T.M.H.) and the birth mother (D.M.T.). The parties had been in a committed relationship for more than 10 years during which they jointly held property and bank accounts. They decided to have a child and raise that child as equal parental partners; however, one of the parties was infertile. Using funds from a joint bank account, they found a doctor to withdraw ova from one party, to fertilize those ova, and then implant the fertilized ova into the infertile party.

For a period of time after the parties separated, they treated each other as co-parents of the child. However, when the child was approximately four, the birth mother severed contact and moved with the child to an undisclosed location. The birth mother and child were later located in Australia and served with a petition. A maternity test established that the nonbirthmother was, in fact, the biological mother of the child.

The trial court found the birth mother’s actions “morally reprehensible,” but felt constrained by the law to rule that “there is no distinction in law or recognition of rights of the biological mother versus a birth mother. If a contract is not binding in this situation, then intent is not relevant under these circumstances.”28 The trial court reasoned that same-sex partners did not meet the definition of a commissioning couple and found that the birth mother had no protection under Florida law because she could not have adopted the child to prevent exactly what had occurred in this case.29 The Fifth District opinion concluded by certifying a question to the Florida Supreme Court on whether the application of F.S. §742.14 to deprive parental rights to a lesbian woman who provided her ova to her lesbian partner so that both could raise a child together as equal parental partners, and who in fact did so for several years after the birth of the child, renders the statute unconstitutional.30

The Florida Supreme Court held that the statute was unconstitutional due to violation of the 1) due process clause of the U.S. Constitution; 2) due process clause and privacy provision of the Florida Constitution; 3) federal equal protection clause; and 4) Florida equal protection clause.31 Critical to this conclusion was that the application of §742.14 automatically deprived T.M.H. of her ability to assert her fundamental right to be a parent.32 In addition, §742.14, in combination with the restrictive definition of a commissioning couple in §742.13(2), was also held to violate state and federal equal protection clauses by denying same-sex couples the statutory protection against automatic relinquishment of parental rights that it afforded to heterosexual unmarried couples seeking to utilize identical reproductive technologies.33 The Florida Supreme Court affirmed the determination of statutory unconstitutionality, but disapproved of the Fifth District’s holding that the statute did not apply in this.34 The case has been remanded to the trial court to determine timesharing and child support with the notation that “an all-or-nothing choice between the two parents is not necessary.”35

The key factor in the Supreme Court’s analysis was that constitutional law protects an unwed biological father who demonstrates a commitment to raising the child by assuming parental responsibilities, but denies the same-sex mother the same protection. “It is not the biological relationship per se, but rather ‘the assumption of the parental responsibilities, which is of constitutional significance.’”36

The Fifth District had concluded that the assisted reproductive technology statute did not apply to T.M.H. because she always intended to parent the child, and, therefore, they reasoned that she could not be considered a “donor” as that term is used in the statute. The Supreme Court rejected this construction of the statute, finding that the plain language of the statute did not provide for subjective intentions to be taken into consideration in determining whether T.M.H. is a donor.37 The statute, instead, identified two categories of individuals who do not relinquish parental rights: a commissioning couple and fathers who have executed a preplanned adoption agreement. Section 742.14 designated those groups as fitting within the term “donor” and then provided for their exemption from the relinquishment of parental rights. The Supreme Court interpreted the statute as treating all individuals who provide genetic material as part of assisted reproductive technology as donors bound by the terms of the statute and then exempting two specific groups.38

The Constitutional Analysis
The Florida Supreme Court’s constitutional analysis began with the “basic tenet of our society and our law that individuals have the fundamental constitutionally protected rights to procreate and to be a parent to their children.”39 Those rights are recognized by both the Florida and U.S. constitutions. Both constitutions protect individuals from arbitrary and unreasonable governmental interference with life, liberty, and property. Fla. Const. art. 1, §23 contains an additional privacy protection allowing an individual “the right to be let alone and free from governmental intrusion into the person’s private life.”40 The Supreme Court noted that the privacy provision of Florida’s Constitution has been interpreted as providing greater protection than that accorded under the U.S. Constitution to include “specific protection against [s]tate interference in ‘parents’ fundamental right to raise their children except in cases where the child is threatened with harm.’”41

The opinion relied on prior authority recognizing “the sanctity of the biological connection between parents and children.”42 The Florida Supreme Court observed that this protection has been accorded to an unwed biological father who demonstrates a full commitment to the responsibilities of parenthood. The biological relationship, standing alone, simply creates the opportunity to assume parental responsibilities. The right to be a parent requires the assumption of responsibility for the care and raising of the child.43 The Supreme Court noted that the facts were undisputed below that both women intended to jointly raise the child and actively participate in the child’s life. T.M.H. had actually assumed full parental responsibilities until D.M.T. absconded with the child.

The majority opinion highlighted that “[i]t 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, plan for the birth of a child and remains committed to supporting and raising her own daughter.”44 T.M.H. had demonstrated her commitment to accepting all responsibilities of being a parent until her contact was severed by D.M.T. “Because T.M.H. accepted responsibility for raising her child from the beginning and did in fact parent and support the child until D.M.T. prevented her from doing so, we hold that T.M.H.’s inchoate interest is developed into a protected fundamental right to be a parent to her child.”45

The more detailed constitutional analysis in the opinion is beyond the scope of this article.

The Due Process Analysis
The Supreme Court held that strict scrutiny analysis for due process was required because the statute interfered with fundamental rights.46 The application of §742.14 resulted in automatic relinquishment of T.M.H.’s right to form a parental relationship with her child and continue raising the child as she had for several years. The right to maintain that relationship is a fundamental right, subject to the protections of the due process clauses and Florida’s constitutional privacy provision.47 The mother could not demonstrate a compelling government interest to deprive the biological mother of her fundamental right to be a parent.48 The opinion found that §742.14 was designed to protect couples who use assisted reproductive technology from claims brought by the “typical third-party providers” of genetic material. The circumstances in the D.M.T. case did not implicate those concerns.49

The Equal Protection Analysis
The Supreme Court’s equal protection analysis centered on whether it was unconstitutional to exempt heterosexual couples, but not same-sex couples, from the automatic relinquishment of parental rights for those using reproductive technology to conceive a child.50 The Supreme Court observed that the Florida Constitution recognizes gender as a specific class, but not sexual orientation; therefore, the state’s equal protection clause does not require the application of heightened scrutiny to examine statutes discriminating on the basis of sexual orientation.51 Accordingly, the distinction must only bear a rational relationship to a legitimate state purpose in order to withstand an equal protection challenge.52

The opinion turned the analysis to “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.”53 D.M.T. attempted to defend the statute by arguing that defining a commissioning couple to include only one male and one female is related to the state’s legitimate interest in not extending rights to same-sex couples. To further that argument, D.M.T. cited to Florida law that declined to recognize same-sex marriages and that prohibited homosexuals from adopting children.54

The Supreme Court rejected D.M.T.’s arguments. The first distinction was that §742.14 does not grant parental rights, but only provides for the relinquishment of those rights by egg or sperm donors. The statute allows members of a commissioning couple to preserve their interest in a child conceived through assisted reproductive technology, but that person only becomes a parent if he or she has a legal basis to be recognized as a parent. This occurs when a biological connection is furthered by the assumption of parental responsibilities.55 Sections 742.13 and 742.14 do not create a statutory basis for an individual to have parental rights who would not otherwise have the ability to claim those rights. Because §742.14 does not operate to grant rights, but only eliminates rights that are already held, or may develop, the Supreme Court concludes that “any [s]tate interest that could potentially exist in not extending rights to same-sex couples is not implicated.”56

As a second basis, the majority opinion noted that the exception in §742.14 for a commissioning couple does not indicate that it should extend only to married couples. Therefore, Florida’s constitutional provision against same-sex marriage is not implicated.57 In the statutory framework for gestational surrogacy found in F.S. §§742.15 and 742.16, the legislature specifically indicated the commissioning couple must be legally married. The legislature made no such requirement in the assisted reproductive technology statute.58

The opinion also rejected the argument that recognizing T.M.H.’s parental rights would undermine the state interest in providing certainty to couples using assisted reproductive technology because it would increase litigation. Litigation already results from unmarried mothers and fathers in terms of whether they qualify as a commissioning couple. As proof of that, the opinion references the cases previously discussed in this article.59 Intent is the critical factor in establishing a commissioning couple. “The state does not have a legitimate interest in precluding same-sex couples from being given the same opportunity as heterosexual couples to demonstrate that intent.”60 The opinion noted that the Third District had held that the Florida law prohibiting same-sex couples from adopting was unconstitutional.61 Having disposed of all of the arguments, the majority opinion concluded that any distinction is unconstitutional as applied because it would lack a rational basis.

The Waiver Analysis
The Supreme Court also rejected the argument that there was a waiver of parental rights based on the signature of a standard informed consent form, finding that this did not constitute an express waiver of parental rights.62 The majority opinion found that the form was signed as the birth mother’s partner and not as the individual providing the egg for the couple.63 The Supreme Court reasoned that the biological mother was not an anonymous donor, but part of a committed couple using reproductive technology so that both could become the child’s parents.

Distinguishing Other Precedents
The Supreme Court distinguished the opinion in Lamaritata because in the Lamaritata case there was a specific agreement that the person providing genetic material would not have any rights or obligations with respect to the child.64 The opinion also distinguished cases in which nonparents, such as grandparents, attempted to establish legal rights to a child.65 Wakeman is also distinguished because, in that case, one party was the birth mother and the other party claiming parental rights was not the biological mother. Unlike Wakeman, in which the party seeking parental rights was neither a biological parent, nor a natural parent, T.M.H. fell under both categories.66

Conclusion
The current state of the law is contained within the precedents outlined in this article. What clear guidance can be gleaned from the case law to date?

To those who wish to donate genetic material without risk of obligation to the child: Beware. A contract alone, no matter how specific, is insufficient to bar a claim for child support. The method of conception controls.

To those who wish to co-parent a child with whom they have no genetic connection (and no adoption): Beware. D.M.T. is a fact-specific ruling which was impacted greatly by the actual assumption of parental duties and obligations. Those wishing to capitalize on this ruling would be well advised to document all indicia of intent and behavior consistent with establishing a parental relationship.q


1 1993 Fla. Sess. L. Serv. Ch. 93-237 (C.S.H.B. 703) (West).

2 Fla. Stat. §742.14 (2013).

3 Fla. Stat. §742.13 (2013).

4 Wakeman v. Dixon, 921 So. 2d 669, 670 (Fla. 1st DCA 2006).

5 Id. at 670.

6 Id. at 670-671.

7 Id. at 669.

8 Id. at 671-672.

9 Id. at 673.

10 Id.

11 Lamaritata v. Lucas, 823 So. 2d 316, 318-319 (Fla. 2d DCA 2002).

12 Id. at 319.

13 Id.

14 Id.

15 L.A.L. v. D.A.L., 714 So. 2d 595, 597 (Fla. 2d DCA 1998).

16 Id.

17 The Big Chill, Columbia Pictures Corporation (1983). The Big Chill is a film about a group of baby-boomer college friends who briefly reunite 15 years after graduation due to a friend’s suicide and the complex relationships and intrigue that emerge during the reunion.

18 Budnick v. Silverman, 805 So. 2d 1112, 1113 (Fla. 4th DCA 2002).

19 Id. at 1114.

20 Budnick has been followed in other cases including Bassett v. Saunders, 835 So. 2d 1198, 1200-1201 (Fla. 1st DCA 2002).

21 Budnick v. Silverman, 805 So. 2d 1112 at 1114.

22 A.A.B. v. B.O.C., 112 So. 2d 761, 762 (Fla. 2d DCA 2013). The trial court also found that the brother and the biological mother were not a commissioning couple, a conclusion with which the appellate court agreed.

23 Id.

24 Id. at 764.

25 Id. at 763, n.2. This portion of the statute is included in footnote two of the opinion, but it is not applied to the facts of this case.

26 The decision in Budnick was acknowledged and distinguished because the father had impregnated the mother in “the usual and customary manner.” Is this a distinction without a true difference?

27 See also D.M.T. v. T.M.H., 38 Fla. L. Weekly S 812 (Fla. Nov. 7, 2013).

28 T.M.H. v. D.M.T., 79 So. 3d 787, 789 (Fla. 5th DCA 2011).

29 Id.

30 Id. at 803.

31 D.M.T. v. T.M.H., 2013 WL 5942278 *1 (Fla. Nov. 7, 2013).

32 Id. at *2.

33 Id.

34 Id.

35 Id. at *20.

36 Id. at *1.

37 Id. at *7.

38 Id.

39 Id. at *8.

40 Id.

41 Id. at *9.

42 Id.

43 Id. at *11.

44 Id. at *13.

45 Id.

46 Id.

47 Id.

48 Id. at *14.

49 Id.

50 Id.

51 Id. at *15.

52 Id.

53 Id.

54 Id.

55 Id.

56 Id.

57 Id. at *16.

58 Id.

59 Id.

60 Id. at *17.

61 Id.

62 Id. at *18.

63 Id.

64 Id. at *11.

65 Id. at *12.

66 Id. at *19.


Odette Marie Bendeck is a principal of Fisher & Bendeck, P.L., and board certified in marital and family law. She has authored and lectured on various family law topics for the bar and the general public. Her practice focuses on complex family law matters.

This column is submitted on behalf of the Family Law Section, Elisha D. Roy, chair, and Sarah Kay, editor. The editors thank Stetson University College of Law student Jennifer H. Burns for her assistance in editing this article.

[Revised: 01-28-2014]