Florida Supreme Court Rules on Lehr v. Robertson

By Nancy Brodzki, Esquire

Co-founding partner of Brodzki Jacobs & Associates

“The intangible fibers that connect parent and child have infinite variety. They are woven throughout the fabric of our society, providing it with strength, beauty and flexibility. It is self-evident that they are sufficiently vital to merit constitutional protection in appropriate cases” Justice Pariente of the Florida Supreme Court citing Lehr v. Robertson, 463 U.S. 248, 256 (1983) in D.M.T. v T.M.H., FLW SC12-261, November 7, 2013.

On Wednesday, November 7, 2013, the Florida Supreme Court handed down a ground-breaking decision that is limited on its facts but broad in the scope of its language. While its immediate application will be to permit same-sex couples to use assisted reproductive technology (ART) like in vitro fertilization and gestational surrogacy and have their parental rights to the resulting child be treated exactly as if they were an opposite-sex couple, the Court’s constitutional analysis and sweeping language clearly portends that discrimination based on sexual orientation, and most especially the state ban on same-sex marriage, will not survive constitutional challenge. 

The basic facts were undisputed. DMT and TMH were a lesbian couple who wanted to have a child. DMT was infertile. TMH donated her ova to be fertilized by donor sperm using in-vitro fertilization. The resulting embryo was then successfully implanted into DMT’s womb, who then carried the baby to term. The child was raised for more than 2 years by the two women. Upon separation, the women continued to share the child-rearing responsibilities, and TMH paid child support to DMT until they began an equal time sharing schedule, whereafter child support was no longer due and owing from TMH to DMT by agreement of the parties. Thereafter, DMT absconded with the child to Australia with the intention to deprive TMH of any parental rights to the child. TMH filed the underlying action to adjudicate her parental rights.

Building upon the 3rd District Court of Appeal’s decision in Fla. Dep’t of Children & Families v. Adoption of X.X.G., 45 So.3d 79 (Fla. 3d DCA 2010), and applying the most liberal standard of scrutiny, the Court concluded that the Assisted Reproductive Technology statute, 742.14, was unconstitutional both as violative of the Due Process Claus of Ce of the U.S. and Florida Constitutions, as well as the privacy provisions of the Florida Constitution, and also held the statute to violate the Equal Protection Clause of both the U.S. and Florida Constitutions, in that the Statute operated to automatically deprive TMH of her fundamental rights of parenthood. It further held that the definition of “commissioning couple” in 742.13 violates the equal protection clause of both Federal and State constitutions by denying same-sex couples the parental rights afforded to opposite-sex couples.

The Statute’s definition of commissioning couple is “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”. Clearly, by limiting the definition of commissioning couple to a “mother and father”, this lesbian couple was denied that right.  And the question before the Court was “whether these very protections against the statutory relinquishment of parental rights can be denied to an unmarried woman who was part of a same-sex couple seeking the assistance 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.”

The Court cited Troxel v. Granville, 530 U.S. 57 (2000) in stating that “the interest of parents in the care, custody and control of their children…is perhaps the oldest of the fundamental liberty interests recognized” in American jurisprudence. They lifted language from Beagle v. Beagle, 678 So.2d 1271 (Fla. 1996) which recognized that parents in Florida have a fundamental right to raise their children which is protected by the Florida Constitution’s privacy provision. Art. I, §23, Fla. Const. By excluding TMH as part of a commissioning couple, the statute, without due process of law, deprived the mother of her parental rights, even though she had donated her ova, enjoyed her full parental rights and fulfilled her full parental responsibilities until the “legal” mother absconded with their child.

Justice Pariente had many poetic and profound moments. This was but one:

It would indeed be anomalous if, under Florida law, an unwed biological father would have more constitutionally protected rights to parent a child   after a one night stand than an unwed biological mother who, with a committed partner and as part of a loving relationship, planned for the birth of a child and remains committed to supporting and raising her own daughter.

The Supreme Court discussed the changes in the definitions of parents, marriage and family over the previous decades, as reflected in US Supreme Court decisions. They remarked on the overturning as unconstitutional the state ban on interracial marriage in Loving v. Virginia, 388 U.S. 1 (1967) and the landmark decision of United States v. Windsor, 133 S.Ct. 2675 (2013), requiring federal recognition of legally married same-sex couples.

The Court went on to address the issue of classification based on sexual orientation. Did the State have a rational basis to discriminate against same-sex couples? Could the State protect only the parental rights of opposite-sex couples in this situation and not same-sex couples? And the answer was a resounding NO. Citing the evidence adduced at trial and cited within the opinion of the Third District in Adoption of X.X.G., the Court affirmed that homosexuals and heterosexuals “make equally good parents”.  Ibid. ___  The Court compellingly concluded “that the State would be hard pressed to find a reason why a child would not be better off having two loving parents in her life, regardless of whether those parents are of the same sex, than she would by having only one parent”.

The T.M.H. case in some ways can be likened to the Windsor case. Windsor was limited to the issue of whether the law known as the Defense of Marriage Act (DOMA), which prohibited the Federal government from recognizing as valid same-sex marriages that were legally entered into in a particular state of foreign country, was an unconstitutional deprivation of equal liberty protected by the Fifth Amendment. The Supreme Court famously held that it was unconstitutional, and within minutes the effects of this decision were felt. A deportation proceeding in New York was literally halted in process when a Clerk from the DOMA project, a non-profit organization dedicated to overturning DOMA, printed a copy of the opinion off the internet and ran it over to the US Immigration Court in New York City. Married same-sex couples can file their taxes as a married couple this year, or file bankruptcy jointly as a married couple. There are more than a thousand federal benefits to being married. And these important federal marriage benefits are finally being enjoyed by same-sex military couples who are married. And who among us deserves those protections more than the men and women, gay or straight, who defend the very freedoms they were denied?

In Lawrence v. Texas, 539 U.S. 558 (2003), the U.S. Supreme Court overturned existing law and declared the Texas statute making sodomy between men a crime unconstitutional. They held that the right to liberty under the Due Process Clause protects all consenting adults’ private sexual conduct, homosexual or otherwise, from governmental intervention or intrusion. Windsor extended the rationale in Lawrence and extended the protections for same-sex couples against unequal treatment under the law. X.X.G. broke legal ground and overturned decades of shame in the Sunshine State dating back to the Anita Bryant era by declaring unconstitutional Florida’s ban against gays and lesbians adopting the very children they were allowed to foster. In T.M.H., the Florida Supreme Court has moved the ball forward as far as the facts of the case would allow. Windsor didn’t say that states must allow same-sex marriage; only that if a state allows it, the federal government must recognize it. T.M.H. doesn’t say that Florida’s constitutional and/or statutory ban against same-sex marriage is unconstitutional. It just stated unequivocally that the state has no rational basis for discriminating against same-sex couples, married or unmarried, for just about any reason at all. That would seem to logically include the right to be issued a marriage license and to have that marriage recognized by the State of Florida as are all opposite-sex marriages.

The tide has turned, and the ripple effect has been more like an avalanche. As of the writing of this article, 16 states and the District of Columbia recognize same-sex marriage. Florida, of course, has both a statutory (Fla. Stat. §741.212) and constitutional (Art. I, §27 Fla. Const.) ban. However, It would appear that the Florida Supreme Court is ready to declare that marriage is a fundamental right in our State, and that all couples, gay and straight, are entitled to equal rights under the law.

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