LESBIAN COUPLE'S SPERM DONOR SEEKING PARENTAL RIGHTS, CHALLENGES FLORIDA’S ART LAWS

        Florida, one of only a handful of states to have passed comprehensive legislation designed to address the rights, responsibilities, and parental obligations of patients and third parties seeking to create children, is now facing a significant challenge to that law. A lesbian couple who used an acquaintance as a sperm donor has been sued by the man, Danny Lucas, who is seeking to be named the father of the twin boys they have been raising for three years.

        Florida does not recognize same sex co-parent adoptions, and the women had relied upon the sperm donor provision within the statute and their agreement, in which they purportedly agreed to limited visitation and waived child support, and the donor waived any paternal rights.

        The women claim they mixed sperm from three different sources: a sperm bank, a married friend, and Lucas, a gay acquaintance. Lucas and the married friend each reportedly signed an "Agreement Regarding Conception" which waived child support and permitted them limited visitation. After appointing a guardian ad litem ("GAL") for the twins, the trial court ordered DNA testing to determine whether Lucas is the biological father. The women objected and that issue is on an "interlocutory" appeal (an appeal of part of a case, here the DNA testing, before a final decision). The parties continue to battle over their contradictory interpretations of the facts and applicable law.

        At issue is whether or not Danny Lucas should be considered a father with parental rights, or a sperm donor under the state's assisted reproductive technology (ART) statute. Lucas argues that a man with an ongoing relationship with the child is not a donor under Florida law, but is part of a commissioning couple" as that law is set out, and therefore entitled to parental rights absent a lengthy termination proceeding which was not undertaken by the parties. Florida State law does not require a physician's involvement in sperm donation, and states that a sperm donor has no parental rights or obligations. The statute does not, however, define the term "sperm donor."

        The trial court ruled that, unlike an anonymous sperm donor, Lucas claims to have visited the children at the hospital at birth, received a photo of them in an "I Love Daddy" frame, and visited them twice weekly, until visitation was cut off by their mother when they were a year old. Those actions may make him a father, according to the court hearing the case.

        Lucas is arguing alternatively that he is not subject to the sperm donor statute or that, if applicable to him, it unconstitutionally denies him the right to assert his paternity. He also maintains the parties' agreement is void as against public policy and has been breached by the mother's refusal to continue visitation. However the case turns out, this test to newly enacted legislation designed to protect the participants of the ARTs will certainly be scrutinized by those attempting to draft such legislation elsewhere. Lamatitata vs. Lucas, 2d.Dis.Ct.App.Fl (Lakeland, No.98-00941).