Continued from Part I. The Court ruled in T.M.H. v. D.M.T, that Florida’s statute prohibiting gay or lesbian prospective parents from adopting a child, does not operate to take away the maternal rights of a biological or birth mother. That seems like a common sense ruling, like the ruling that TMH was clearly not a “donor”, but both were major issues in the case. There was a dissenting Judge in the case who wrote an opinion stating that under Florida law, TMH — the biological mother, had lost her rights as a parent.
Another important issue in the case was whether TMH had waived her rights as a parent, by signing a waiver form at the reproductive clinic — the form basically provided that TMH waived any rights she might have as a parent regarding any child resulting from her donation of her ova. The court ruled that this waiver form did not have the effect of waiving TMH’s maternal rights, because it was clear that that was not the intention or agreement of the parties, and that TMH was not a donor nor simply donating her eggs. The court relied on and cited cases from other states that had reached the same conclusions when dealing with similar waiver forms. So, this is Florida law regarding the waiver form, at least in this Circuit currently. It is always possible that a different decision will be reached by this court or another parallel or higher court in the future. There is also always a chance Florida’s legislature will attempt to craft a statute that will make these form waivers in a reproductive clinic binding and effective against parents like TMH, in a way that perhaps would successively survive a court challenge to the constitutionality of the statute.
The point here, is that there is reason to be cautious about signing these kinds of waivers, and to read carefully other kinds of forms that are presented to you in a doctor’s office, hospital or other location. Many if not most times, when you sign a document, it is binding. There are some forms a doctor’s office or hospital might require you to sign as a condition to providing treatment, but there are some forms you may have the option of not signing, or where you can negotiate regarding what’s included or added to the form. I fully believe that the staff at medical offices and hospitals have the patients’ welfare and best interests as their first priority, and that is true of the institutions as well, but at the same time I’m also fairly sure, at least from my own experiences with medical situations with family, that some of the forms (written by attorneys) are designed with the institution’s best interests in mind. In a situation like TMH and DMT’s, where the doctor is helping the couple conceive a child, perhaps the office would go along with the prospective parents writing on the form that the biological parent is not waiving her rights and that the couple intend to raise the child together, or simply not require the waiver.
The “concurring” opinion in the TMH case raised an additional interesting and important issue, based on the decision in Florida Department of Children & Families v. Adoption of X.X.G., 45 So. 3d 79 (Fla. 3d DCA 2010), which ruled that Florida’s statute prohibiting adoption by a gay or lesbian prospective parent violates the equal protection clause of Florida’s Constitution, and is unconstitutional. Judge Monaco in his concurring opinion in TMH observed that if TMH and DMT were not a same-sex couple, the court would probably have viewed them as being able to fall under a specific provision in Florida Statutes 742.14, which allows a “commissioning couple” to donate sperm/ova without waving parental rights. The statute, however, defining the term identifies a “commissioning couple” as an intended mother and father. If it is unconstitutional to prohibit a gay or lesbian prospective parent from adopting a child, it seems it would violate the notion of equal protection as well to not allow a same-sex couple to be treated as a commissioning couple (a quick review of the case law interpreting F.S. 742.14 indicates that heterosexual unmarried partners can be treated as a commissioning couple). The ruling in Adoption of X.X.G. was based on the Court’s determining that there was no rational basis or reason for prohibiting gay or lesbian prospective parents from adopting. The same reasoning should apply in determining whether there is a rational basis for prohibiting a same sex couple from seeking to have a child through the reproductive options available to other couples.