JAMES ENRIQUEZ vs ASHLEY VELAZQUEZ

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO

FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED

JAMES ENRIQUEZ,

Appellant,

v. Case No. 5D21-1542

LT Case No. 2018-DR-14017

ASHLEY VELAZQUEZ,

Appellee.

________________________________/

Opinion filed November 3, 2022

Appeal from the Circuit Court

for Orange County,

John D.W. Beamer, Judge.

William D. Palmer, Erin Pogue Newell,

and Shannon McLin, of Florida Appeals,

Orlando, for Appellant.

Chad A. Barr, of Chad Barr Law,

Altamonte Springs, and Jamie Billotte

Moses, of Holland & Knight LLP,

Orlando, for Appellee.

Matthew E. Thatcher, of The Solomon

Law Group, P.A., Tampa, Jennifer A.

Patti, of Brodie & Friedman, P.A., Boca

Raton, Christie Lou Mitchell, of The

CLM Law Firm, Orlando, Jennifer L.

Kipke, of Hesser & Kipke,

Gainesville, Reuben A. Doupe

and Sarah M. Oquendo, of

Coleman, Hazzard, Taylor,

Klaus, Doupe & Diaz, Naples,

and Raymond S. Grimm, of

Raymond S. Grimm, Esq, P.A.,

North Port, Amicus Curiae for

Family Law Section of the Florida

Bar, on behalf of Appellant.

LAMBERT, C.J.

The parties, James Enriquez and Ashley Velazquez (“Mother”), both

unmarried, decided to have a child together. Though close friends, they were

never in a romantic relationship with each other. Instead, they successfully

conceived a child using an at-home artificial insemination process. The child

is now seven years old.

Enriquez petitioned to establish paternity and to have timesharing with

the minor child. Mother answered, agreeing that Enriquez is the child’s

natural or biological father and further acknowledging that a parenting plan

should be ordered by the trial court, with an appropriate timesharing

schedule. An interlocutory order was later entered in the case awarding

Enriquez temporary timesharing with the child each week from

Sunday morning through after school on Wednesday, with the trial court

also noting in its order that “the parties stipulate to [Enriquez’s] paternity

[of the minor child].”

2

Approximately eighteen months after this order, trial was held on

Enriquez’s petition. The parties stipulated that the issues to be resolved by

the court at trial were: (1) the amount of timesharing that each party would

have with the child, (2) their resulting child support obligations, (3) which

party’s address would be used for purposes of a “school designation,” and

(4) who would claim the child as a tax exemption for federal income tax

purposes.

Both parties testified at trial. In its final judgment, the trial court

acknowledged that Mother had no objection to Enriquez having timesharing

with the child, specifically finding, among other things, that Mother intended

Enriquez to “be a constant figure in the child’s life.” The court found that

since the interlocutory order awarding him temporary timesharing, Enriquez

had, in fact, been a “constant presence in the child’s life,” with the child

knowing him as “Dad.”

The court also found that “[b]y all accounts, the statutory factors under

section 61.13(3), Florida Statutes related to developing a parenting plan and

time-sharing schedule, for the most part, favor both parties equally.” In that

regard, the court stated that the parties: (1) appeared to put the child’s

interests ahead of their own, (2) were flexible regarding their exercising of

timesharing with the child so far, and (3) were informed as to the child’s

3

education, interests, and medical needs. The court summed up that “both

parties love and care for the child deeply and have been able to set most of

their differences, which are few, aside for the child’s best interests.”

Despite these favorable findings, Enriquez received no timesharing

with the child in the final judgment. Instead, on an issue never raised by

Mother, the court, on its own initiative, concluded that section 742.14, Florida

Statutes (2020), which it referred to as Florida’s “assisted reproductive

technology” statute, precluded it from granting Enriquez relief; and it “denied

and dismissed” his petition for paternity with prejudice. Following the

summary denial of Enriquez’s motion for rehearing, this timely appeal

ensued.

Enriquez raises three arguments here for reversal. He first contends

that he was denied procedural due process when, following the parties’

presentation of evidence and just prior to closing argument, the trial court

raised the issue of whether section 742.14 precluded his claim of paternity.

Enriquez argues that due to this sua sponte action of the trial court, he was

unable to adequately prepare for and respond to what became the

dispositive issue in the case. Second, Enriquez asserts that, based on the

undisputed facts in this case, the trial court erred in applying section 742.14

4

to deny his petition. Third, Enriquez alternatively argues that section 742.14

is unconstitutional “as applied.”

For the following reasons, we agree with Enriquez that the trial court

committed reversible error in essentially ruling, as a matter of law, that

section 742.14 applies to the facts of this case to bar his claim of paternity.1

ANALYSIS—

This appeal presents a question of law and statutory construction. Our

review is de novo. See Townsend v. R.J. Reynolds Tobacco Co., 192 So.

3d 1223, 1225 (Fla. 2016) (citing Daniels v. Fla. Dep’t of Health, 898 So. 2d

61, 64 (Fla. 2005)). To begin this review, we first look to the language of the

statute, which, since its inception, has substantively read:

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.

63.213, 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.

1

Based on our resolution of the case on this issue, we find it

unnecessary to reach Enriquez’s other arguments.

5

By this statute, “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.” D.M.T. v. T.M.H., 129 So. 3d 320, 333 (Fla. 2013).

Addressing Enriquez’s paternity action, the trial court analyzed

whether Enriquez fell within either of the two recognized groups exempt from

section 742.14’s directive that a sperm donor otherwise relinquishes all

paternal rights to a child born from their donation. It first observed, correctly,

that Enriquez had not executed a preplanned adoption agreement under

section 63.213, Florida Statutes; thus, he was not within that exempt group.

The court then turned to whether Enriquez and Mother were a

“commissioning couple” who had used “assisted reproductive technology” in

the conception of the child. The court acknowledged that a “commissioning

couple” was defined in section 742.13(2), Florida Statutes (2020), 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.” (Emphasis supplied by the trial court). It then related

the definition of “assisted reproductive technology,” which provides, in full:

“Assisted reproductive technology” means those

procreative procedures which involve the laboratory

6

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.

See § 742.13(1), Fla. Stat.

Applying these statutory definitions from section 742.13, which the trial

court acknowledged under D.M.T. are to be read in pari materia with section

742.14, 2 the court, quite correctly, reached what it referred to as a “legal

conclusion” that the parties’ “at-home, do-it-yourself method of artificial

insemination” did not involve the “laboratory handling of human eggs or

preembryos.”

At this point, the trial court had seemingly reasoned that because there

was no laboratory handling of human eggs or preembryos, the child was not

born through the use of “assisted reproductive technology,” as that term is

defined in section 742.13(1). However, it then concluded that this “does not

change the fact that [Enriquez] is a sperm donor under section 742.14” and,

as such, “[Enriquez] does not have parental rights to a child resulting from

that donation.”3

2

See D.M.T., 129 So. 3d at 333 (recognizing that the court “necessarily

must read sections 742.13 and 742.14 together”).

3

The trial court did not expressly find that Enriquez and Mother were

not a commissioning couple. By inference, it necessarily concluded they

7

We disagree with the trial court’s ultimate conclusion. For the following

reasons, we hold that section 742.14 applies to paternity actions only when

the child was born as a result of assisted reproductive technology, which did

not occur here.

Our dissenting colleague characterizes as misguided our conclusion

that section 742.14 applies only when “assisted reproductive technology” is

used, as that term is defined in section 742.13(1), asserting that we have

improperly considered the Legislature’s intent rather than just applying “the

plain language of the statutory text.” However, as also observed by the

dissent, the Florida Supreme Court in D.M.T. considered the Legislature’s

intent in enacting section 742.14, and it likewise concluded that the

Legislature intended that the statute apply only when assisted reproductive

technology is used.

In that case, the supreme court referred to section 742.14 as the

“assisted reproductive technology statute” eleven times4; and, as quoted

were not, since a commissioning couple under the statute must conceive

through assisted reproductive technology, which the court correctly found

had not occurred. Moreover, it denied Enriquez’s petition for paternity when

he is unquestionably the child’s biological father.

4

The dissent suggests that the Florida Supreme Court’s reference to

section 742.14 as the “assisted reproductive technology statute” was based

on the title of the legislative enactment creating the statute (i.e., the “bill title”).

However, D.M.T. does not cite or mention at all the legislative enactment,

8

supra, the supreme court 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.” D.M.T., 129 So. 3d at 333

(emphasis added). Even the dissenting opinion in D.M.T., written by then-

Chief Justice Polston, referred to section 742.14 as the “assisted

reproductive technology statute” three times; and it concluded that “[t]he

purpose of this statute is to define the rights of parties who use assisted

reproductive technology to conceive and to thereby provide certainty and

stability for parents and children.” D.M.T., 129 So. 3d at 353 (Polston, C.J.,

dissenting) (emphasis added).

In the instant case, though the dissent arguably questions the practice

of discerning legislative intent as a guiding principle in the interpretation of

statutes, we are not permitted to disregard binding precedent from the

Florida Supreme Court. We note, here, that we respectfully disagree with

the dissent’s assertion that the subject holding from D.M.T. constitutes obiter

dicta. The first issue that was presented to the supreme court in D.M.T. and

that the court addressed in its opinion was whether the party in that case

chapter 93-237, Laws of Florida; nor does it indicate in any other way that

the supreme court considered the bill title in interpreting section 742.14.

9

from whom the eggs were withdrawn, and then fertilized and implanted into

her partner via in vitro fertilization, was a “donor” pursuant to section 742.14.

In the course of concluding that the party was a “donor” as that term is used

in the statute, the supreme court held that with the exception of members of

a “commissioning couple” or fathers who executed a preplanned adoption

agreement, “the subjective intentions of all other individuals who provide

eggs, sperm, or preembryos during the course of assisted reproductive

technology” are not taken into consideration and that, “[i]nstead, 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.” D.M.T., 129 So. 3d at 333

(second alteration in original) (emphases added). Those holdings were not

obiter dicta because they consisted of “propositions along the chosen

decisional path or paths of reasoning that (1) [were] actually decided, (2)

[were] based upon the facts of the case, and (3) [led] to the judgment.” See

Pedroza v. State, 291 So. 3d 541, 547 (Fla. 2020). Nevertheless, even if we

were not bound by the supreme court’s holding in D.M.T., we would reach

the same result.

Examining the more recent Florida Supreme Court opinions

highlighted by the dissent, in which the court focused solely on the

10

“supremacy-of-text principle”—i.e., that “[t]he words of a governing text are

of paramount concern, and what they convey, in their context, is what the

text means”—and in which the court did not endeavor to discern the

Legislature’s intent, the supreme court has nevertheless recognized that the

“supremacy-of-text principle” requires consideration of the words of a statute

“in their context” and that “every word employed in [a legal text] is to be

expounded in its plain, obvious, and common sense, unless the context

furnishes some ground to control, qualify, or enlarge it.” Ham v. Portfolio

Recovery Assocs., LLC, 308 So. 3d 942, 946–47 (Fla. 2020) (alterations in

original) (emphasis added) (quoting Antonin Scalia & Bryan A. Garner,

Reading Law: The Interpretation of Legal Texts 56 (2012); Advisory Op. to

Governor re Implementation of Amend. 4, the Voting Restoration Amend.,

288 So. 3d 1070, 1078 (Fla. 2020)).

Furthermore, even where the supreme court has recently held that

inquiry into the Legislature’s intent is “a secondary analysis to be employed

when construing an ambiguous statute” and that “there is no occasion for

resorting to the [secondary] rules of statutory interpretation and construction”

where “the language of the statute is clear and unambiguous and conveys a

clear and definite meaning,” the supreme court has also recognized that

related statutes must be read in pari materia “in order to determine whether

11

[they] create[] an ambiguity not otherwise apparent on the face” of the statute

at issue. State v. Peraza, 259 So. 3d 728, 732–33 & n.2 (Fla. 2018) (first

alteration in original) (first citing Lowry v. Parole & Prob. Comm’n, 473 So.

2d 1248, 1249 (Fla. 1985); then quoting Holly v. Auld, 450 So. 2d 217, 219

(Fla. 1984)). “This is true because ‘[w]here possible, courts must give effect

to all statutory provisions and construe related statutory provisions in

harmony with one another.’” Id. at 732 (alteration in original) (quoting M.W.

v. Davis, 756 So. 2d 90, 101 (Fla. 2000)).

In the instant case, the dissent asserts that by section 742.14’s “plain

terms,” it applies to “‘any’ donor” who does not satisfy one of the two

exceptions explicitly provided in the statute, neither of which applies in the

instant case. The dissent then asserts that because Enriquez “cannot

dispute any factual issues related to whether he is a donor[,] . . . our review

is limited to the legal issue of whether donors who use at-home methods of

artificial insemination relinquish parental rights under section 742.14.” By so

framing the issue, the dissent begins with the assumption that Enriquez is a

“donor” in analyzing the question of whether Enriquez is a “donor.”

In the underlying proceedings, there was no dispute that Enriquez’s

sperm was used to impregnate Mother via the at-home, do-it-yourself

artificial insemination procedure utilized by the parties to conceive a child.

12

That issue of fact remains undisputed. The question of whether the use of

Enriquez’s sperm in that manner supports the conclusion that Enriquez is a

“donor” as that term is used in section 742.14 constitutes a question of

statutory interpretation and application that is an issue of law. See, e.g.,

McGovern v. Clark, 298 So. 3d 1244, 1248 (Fla. 5th DCA 2020) (citing B.Y.

v. Dep’t of Child. & Fams., 887 So. 2d 1253, 1255 (Fla. 2004); In re

Guardianship of J.D.S., 864 So. 2d 534, 537 (Fla. 5th DCA 2004)).

As demonstrated, infra, if one were to follow the dissent’s reasoning to

its logical end, there would be no basis in the plain language of the statute

to refrain from applying section 742.14 to the scenario of a child conceived

through sexual intercourse; and the plain language of the statute could even

support applying section 742.14 to the scenario of a child conceived through

sexual intercourse without the conceiving parents having any predetermined

intentions as to the parentage of the child, which would be inconsistent with

the rest of chapter 742 controlling determinations of paternity.

The plain language from the text of section 742.14, without reference

to context, provides that the donor of any sperm, except in the two previously

discussed exceptions, relinquishes all paternal rights to the resulting

children. However, had Enriquez and Mother gone into the bedroom on the

day in question with the intent of conceiving a child and chose to procreate

13

through sexual intercourse instead of artificial insemination, would Enriquez

still be a “donor” under the statute and thus precluded from paternal rights to

the child?

“Donor” is not defined in section 742.14 or, for that matter, in chapter

742. The dictionary definition of the word “donor” is “one that gives, donates,

or presents something” or “one used as a source of biological material (such

as blood or an organ).” Donor, Merriam-Webster Dictionary,

https://www.merriam-webster.com/dictionary/donor (last visited Oct. 11,

2022). The first dictionary definition of “donor” could logically be applied to

one who “gives” or “presents” sperm through sexual intercourse as much as

it could be applied to one who does so through an at-home, do-it-yourself

artificial insemination kit. That first definition of “donor” could be applied

irrespective of whether either parent had any predetermined intention as to

the parentage of any child potentially conceived by the sexual intercourse.

On the other hand, while the second dictionary definition might appear

to better apply to the at-home artificial insemination scenario than to sexual

intercourse, nothing could stop a mother of a child from challenging a

paternity action filed by the child’s biological father on the basis that she

engaged in sexual intercourse with the father for the purpose of “using” him

“as a source of biological material” (i.e., sperm) and that the father is

14

therefore a “sperm donor” who relinquished all parental rights under section

742.14, irrespective of whether the father had any knowledge of the mother’s

plot. The second dictionary definition of “donor” could also be asserted by

the biological father of a child to avoid parental responsibility, based on the

argument that the mother agreed that she was only using him as a source of

biological material (i.e., as a “sperm donor”). In fact, such arguments have

actually been raised, and properly rejected, in Florida courts. See Bassett v.

Saunders, 835 So. 2d 1198, 1199 (Fla. 1st DCA 2002) (recognizing that the

trial court correctly found that because the father impregnated the mother in

the “usual and customary manner,” the “sperm donor” “agreement was

invalid and unenforceable under the sperm donor statute”); Budnick v.

Silverman, 805 So. 2d 1112, 1114 (Fla. 4th DCA 2002) (rejecting a father’s

argument in a paternity action that he was merely a sperm donor under

section 742.14 and finding that section 742.14 does not apply when, under

the sperm donor agreement, the father impregnated the mother in the “old-

fashioned way”).

Because the plain language of section 742.14 leaves open the

possibility of interpreting the word “donor” in a manner that would make

section 742.14 mutually exclusive with sections 742.011–.108, Florida

Statutes, relating to the determination of parentage for children born out of

15

wedlock, we interpret section 742.14 in a manner that “give[s] effect to all

statutory provisions” and construe section 742.14 and the rest of chapter 742

“in harmony with one another.” See Peraza, 259 So. 3d at 732 (quoting

M.W., 756 So. 2d at 101); see also Scalia & Garner, supra, at 252–54

(asserting that under the “Related-Statutes Canon,” laws dealing with the

same subject should if possible be interpreted harmoniously because a

single statute “should no more be interpreted to clash with the rest of [the

body of law to which it belongs] than it should be interpreted to clash with

other provisions of [that same statute]” and explaining that the “Related-

Statutes Canon” is “based upon a realistic assessment of what the legislature

ought to have meant,” a basis that itself “rests on two sound principles: (1)

that the body of the law should make sense, and (2) that it is the responsibility

of the courts, within the permissible meanings of the text, to make it so”).

Otherwise, could not the plain, untethered text of section 742.14 apply to a

couple where the male donates his sperm through sexual intercourse and

neither of the two exemptions contained within the statute applies?

Considering section 742.14 in pari materia with related statutes, we

conclude that the term “donor” in section 742.14 refers to an individual who

provides “any egg, sperm, or preembryo” as part of “assisted reproductive

technology.” In fact, as stated supra, such an interpretation of “donor” in

16

section 742.14 is binding upon this court by means of the Florida Supreme

Court’s interpretation of that statute in D.M.T. See 129 So. 3d at 333 (holding

that the term “donor” in section 742.14 applies to “all individuals who provide

eggs, sperm, or preembryos as part of assisted reproductive technology”).

In our view, had the Legislature intended to include the at-home

artificial insemination process utilized in this case as one of the procreative

procedures coming within the statutory definition of “assisted reproductive

technology,” it could have clearly and easily done so and may, in fact, elect

to do so in the future, as is entirely within its prerogative. However, we hold

today that section 742.14, Florida Statutes, does not bar Enriquez’s claim for

paternity of the minor child when the child was conceived by an at-home

artificial insemination process as done in this case.

Accordingly, we reverse the final judgment denying and dismissing

Enriquez’s petition for paternity with prejudice. We remand with directions

that the trial court immediately enter a final judgment granting Enriquez’s

petition and finding and establishing him as the legal father of the minor child.

The trial court is further directed to adjudicate forthwith the issue of

timesharing, together with the other issues that were stipulated to by the

parties to be resolved at trial, taking into consideration any additional

evidence that may be presented by either party so as to provide for the

17

current best interests of the child.5

REVERSED and REMANDED, with directions.

HARRIS, J., concurs.

SASSO, J., dissents, with opinion.

5

We also decline our dissenting colleague’s suggestion to certify our

decision to be in conflict with A.A.B. v. B.O.C., 112 So. 3d 761 (Fla. 2d DCA

2013). A.A.B., which predates the Florida Supreme Court decision in D.M.T.,

addressed the situation where a third person donated his sperm to two

women in a committed relationship so that they could conceive a child, which

are not the facts in the present case.

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Case No. 5D21-1542

LT Case No. 2018-DR-14017

SASSO, J., dissenting.

The disposition of this case turns on the interpretation of section

742.14, which provides:

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. 63.213, shall relinquish

all maternal or paternal rights and obligations with respect to the

donation or the resulting children.

§ 742.14, Fla. Stat. (2020). Under the majority’s interpretation though, the

statute reads a bit differently. The majority’s interpretation transforms section

742.14 to read as follows, with additional language in bold:

The donor who provides as a part of assisted reproductive

technology any egg, sperm, or preembryo, other than the

commissioning couple or a father who has executed a

preplanned adoption agreement under s. 63.213, shall relinquish

all maternal or paternal rights and obligations with respect to the

donation or the resulting children.

The majority believes this conclusion is required by D.M.T. v. T.M.H., 129

So. 3d 320 (Fla. 2013). I disagree. D.M.T. does not require the result reached

by the majority nor does a proper interpretation of section 742.14 permit it.

As a result, I respectfully dissent.

19

I.

To begin, it is important to clarify the issue presented by this appeal.

Appellant argues that he did not relinquish parental rights pursuant to section

742.14 because his donation was achieved via “artificial insemination at

home without the use of ‘assisted reproductive technology’ as defined in

section 742.13(1), Florida Statutes (2020).” He cannot dispute any factual

issues related to whether he is a donor because he has not provided this

Court with a transcript. See Applegate v. Barnett Bank of Tallahassee, 377

So. 2d 1150, 1152 (Fla. 1979) (“Without a record of the trial proceedings, the

appellate court can not properly resolve the underlying factual issues so as

to conclude that the trial court’s judgment is not supported by the evidence

or by an alternative theory.”). As a result, our review is limited to the legal

issue of whether donors who use at-home methods of artificial insemination

relinquish parental rights under section 742.14.

The text of section 742.14 forecloses Appellant’s argument. By its plain

terms the statute applies to “any” donor, with two exceptions: 1) a

“commissioning couple” or 2) a “father who has executed a preplanned

adoption agreement under s. 63.213.” It is undisputed that neither exception

applies here. Appellant did not execute a preplanned adoption agreement,

20

and he does not fall within the definition of a “commissioning couple,” as that

term is defined in section 742.13(2), Florida Statutes (2020).

This is where our inquiry should end. Our “sole function” in interpreting

statutes is to apply to the law as we find it. Alachua Cnty. v. Watson, 333 So.

3d 162, 169 (Fla. 2022) (citations omitted). This is our obligation even if we

believe the proper interpretation leads to a harsh outcome. See Baker Botts

L.L.P. v. ASARCO LLC, 576 U.S. 121, 134 (2015) (observing courts lack the

authority to rewrite statutes).

II.

Despite section 742.14’s unambiguous reference to “any” donor, the

majority, relying on D.M.T., limits that section to donors who provide genetic

material in laboratory settings. D.M.T. does not require that result.

In D.M.T., the Florida Supreme Court was presented with two issues:

1) whether section 742.14 applied to a woman who donated an egg to

another woman with whom she was previously in a same-sex relationship

with, even though her subjective intent was otherwise, and 2) if so, whether

the statute was unconstitutional as applied to the egg donor. Critically

though, the D.M.T. court did not conclude that section 742.14 applies only to

individuals employing “assisted reproductive technology.” And it certainly did

not conclude that section 742.14 does not apply to sperm donors who

21

provide donations via at-home artificial insemination methods. Nor could it—

those facts were not presented to the D.M.T. court.

Nonetheless, the majority seizes on the D.M.T. court’s observations

related to section 742.14’s creation. Specifically, the D.M.T. court stated that

in structuring section 742.14 as applying to all donors, with two exceptions,

“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 . . . .” D.M.T., 129 So. 3d at 333.

But this statement by the D.M.T. court is dicta, not a holding. See Pedroza

v. State, 291 So. 3d 541, 547 (Fla. 2020) (“A holding consists of those

propositions along the chosen decisional path or paths of reasoning that (1)

are actually decided, (2) are based upon the facts of the case, and (3) lead

to the judgment.”). So, the statement is better read as an observation made

by way of background; not as a means of determining whether the

application of section 742.14 is limited to donations that occur in laboratory

settings. Similarly, the D.M.T. court’s multiple references to “the assisted

reproductive technology statute” do not transform that choice of stylistic

phrase into a holding regarding the statue’s reach.

III.

Notwithstanding D.M.T., the majority says it would reach the same

22

result. But this Court should not. The D.M.T. court’s frequent reference to the

“assisted reproductive technology statute” appears to be a reference to the

title of the legislative enactment (the “bill title”) creating section 742.14. And

even considering a bill title leads the court down a wayward path.

For background, a bill title is required by Article III, section VI of the

Florida Constitution and appears above the bill’s enacting clause.

Importantly though, the bill title is not part of the enacted statute (in contrast

to statutory titles and headings) and thus does not make its way into Florida

Statutes. It is replicated in Florida Chapter Laws, but only as it appears in

the bill that was enacted.

Here, the title of the bill that created section 742.14 begins with the

phrase “AN ACT relating to reproductive technology.” But this bill title, which

is not part of the enacted statute, cannot be relied upon to vary the plain

meaning of the statutory language the legislature did enact. See, e.g.,

Neumann v. City of New York, 122 N.Y.S. 62, 66 (N.Y. App. Div. 1910)

(“Neither the title of an act, nor a preamble contained in it, can control the

plain words thereof, nor extend its purview to objects mentioned in either title

or preamble but not in the act itself.” (citing 2 Lewis’ Sutherland, Statutory

Constr. (2d ed.) §§ 339, 389)). The majority does this though, when it cabins

section 742.14 to apply only to paternity cases involving disputes over

23

“assisted reproductive technology” even though the legislature itself did not

so limit that section’s application.

The majority then compounds the problem by deploying “intent”—

rather than the plain language of the statutory text—as determinative of

section 742.14’s meaning. The practice of attempting to discern and then

give effect to legislative intent is problematic for several reasons. At its

foundation, attempting to discern legislative intent is “a search for the

nonexistent.” See Antonin Scalia & Bryan A. Garner, Reading Law: The

Interpretation of Legal Texts 394 (2012). “[C]ollective intent is pure fiction

because dozens if not hundreds of legislators have their own subjective

views on the minutiae of bills they are voting on—or perhaps no views at all

because they are wholly unaware of the minutiae.” Id. at 392. 1

1

Here, there are competing policy considerations that neither the

D.M.T. court nor the majority have accounted for in determining the

legislature’s “intent.” See, e.g., Elizabeth Watkins, Who’s Your Daddy?: In

Vitro-Fertilization and the Parental Rights of the Sperm Donor, 30 U. Fla. J.L.

& Pub. Pol’y 131, 139–40 (2019) (observing that the 1973 version of the

Uniform Parentage Act, which provided that only sperm donors who provided

the donation “to a licensed physician” relinquished parental rights, was

amended to eliminate the “to a licensed physician” requirement, so that those

who could not afford artificial insemination through a licensed physician

could benefit from the statute’s protections). So, even if it were possible to

discern some collective intent, it is not clear whether the majority or the

D.M.T. court properly guessed the legislature’s intent in creating section

742.14. But again, these policy considerations, which I highlight only to

underscore the problem with the majority’s methodology, are for the

legislature, not the judiciary.

24

More importantly though, we are required to interpret the statute

according to its plain meaning—not the legislature’s subjective intent.

Indeed, “even the most formidable argument concerning the statute’s

purposes [can] not overcome the clarity [of] the statute’s text.” Kloeckner v.

Solis, 568 U.S. 41, 55 n.4 (2012).

IV.

So, instead of focusing on intent we should, as the Florida Supreme

Court has more recently stated, follow the “supremacy-of-text principle”—

namely, the principle that “[t]he words of a governing text are of paramount

concern, and what they convey, in their context, is what the text means.”

Ham v. Portfolio Recovery Assocs., LLC, 308 So. 3d 942, 946 (Fla. 2020)

(quoting Scalia & Garner, Reading Law at 56). 2 And, as explained above,

the plain language of the governing text forecloses the majority’s

interpretation.

2

We do this because the legislature does not enact intent, it enacts

text. See Livingston Rebuild Ctr., Inc. v. R.R. Ret. Bd., 970 F.2d 295, 298

(7th Cir. 1992). Only the text of the statute—not the legislature’s “intent”—

went through bicameralism and presentment as required by Article III of the

Florida Constitution. The statutory text, not the subjective intent of either one

or many legislators, is the legitimate source of law. So, the words that were

enacted, rather than some amorphous concept of intent, must be our guide

in determining the statute’s meaning.

25

The majority attempts to sidestep the clear implications of section

742.14 by concluding that the term “donor” must be viewed in context and

limited to donors using “assisted reproductive technology,” presumably as

that term is defined by section 742.13. To be clear, I agree that context

always matters in statutory interpretation. “Let us not forget, however, why

context matters: It is a tool for understanding the terms of the law, not an

excuse for rewriting them.” King v. Burwell, 576 U.S. 473, 501 (2015) (Scalia,

J., dissenting) (emphasis in original). And here, limiting the term “donor” as

the majority does is not a product of reading the statutes in pari materia, but

instead would result in judicial revision of section 742.14. See, e.g., State v.

Bradford, 787 So. 2d 811, 819 (Fla. 2001) (“[T]he concept of reading

statutes in pari materia does not require that elements from one subsection

be carried over and inserted into another subsection even if the statutes are

related.”).

Rather than offering support, further examination of the contextual

clues presented by chapter 742 only undermines the majority’s conclusion.

As the trial court correctly observed, the legislature incorporated section

742.13(1)’s definition of “assisted reproductive technology” into section

742.14 only through the definition of “commissioning couple” in section

742.13(2). Reading section 742.14 and section 742.13 together provides the

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meaning of commissioning couple. Specifically, a commissioning couple is a

couple that employs assisted reproductive technology of the type that

involves “laboratory handling” of human eggs or preembryos. § 742.13(1),

(2), Fla. Stat. But the term “donor” is not so limited.

And if the term “donor” is so limited, the structure of section 742.14

starts to crumble. Applying the legislature’s definition of “assisted

reproductive technology” to the term “donor” in section 742.14 would

replicate the defined phrase twice—once to limit the term “donor,” and again

to limit the term “commissioning couple.” In addition, chapter 742’s definition

of “assisted reproductive technology” refers only to the laboratory handling

of “human eggs or preembryos.” So, under the majority’s construction, if a

sperm donation is provided in a laboratory setting, but there is no laboratory

handling of the egg, section 742.14 would also not apply. Rather than provide

harmony between the various sections of chapter 742, the majority’s

interpretation only creates discord. 3

3

The majority also seems somewhat motivated by the parade of

horribles that will ensue if section 742.14 is interpreted to limit Appellant’s

parental rights. Rather than answer every question the majority poses, which

present both facts and legal questions not presented by this case, I observe

the following: section 742.10 provides for the establishment of paternity for

children born out of wedlock, a procedure that was not employed in this case.

Section 742.11 addresses the scenario in which a child conceived by means

of artificial insemination is born within wedlock. And section 742.14

addresses the rights of donors. Each of these statutory sections maintains

27

Further, I agree with the majority that if the “Legislature intended to

include the at-home artificial insemination process utilized in this case as one

of the procreative procedures coming within the statutory definition of

‘assisted reproductive technology,’ it could have clearly and easily done so.”

Adding artificial insemination into section 742.13(1) though would only

broaden the definition of a “commissioning couple,” potentially bringing

Appellant within its scope. The absence of that term, in my view, bolsters the

determination that section 742.14 is meant to apply to “any” donor, including

those who use at-home artificial insemination procedures. See also T.M.H.

v. D.M.T., 79 So. 3d 787, 812 (Fla. 5th DCA 2011) (Lawson, J. dissenting)

(concluding the term “donor” in the context of section 742.14 “universally

encompasses anyone who provides genetic material for use by another”).

I am not the first to reach this conclusion. The Second District reached

the same conclusion in A.A.B. v. B.O.C., 112 So. 3d 761 (Fla. 2d DCA

2013),4 when it held that section 742.14 “does not require that the artificial

insemination be performed in a clinical setting to apply.” Id. at 764. As a

its operative effect if section 742.14 is interpreted to apply to, as it says, “any”

donor, rather than only donors who provide donations in laboratory settings.

4

In my view the holding in A.A.B. expressly and directly conflicts with

the majority opinion in this case. If I were in the majority, I would certify

conflict.

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result, the Second District concluded the trial court erred in granting the

biological father parental rights with respect to a child who was conceived

via artificial insemination, determining that the “do-it-yourself” manner in

which the artificial insemination was conducted did not alter the fact that the

biological father was a sperm donor for purposes of section 742.14. Id.

To summarize, the majority’s problematic methodology leads to a

result that the plain language of the text cannot bear. Further, no case cited

by the majority requires the result it reached.5 By contrast, the trial court

faithfully applied the reasonable meaning of the statutory text and concluded

that because Appellant, a donor, did not fall within one of the two legislatively

supplied exceptions to those donors who relinquish parental rights, he

relinquished all paternal rights. So, I would affirm on that basis.

V.

Finally, Appellant has not presented any other argument that

constitutes reversible error. First, his due process argument does not provide

5

Bassett v. Saunders, 835 So. 2d 1198 (Fla. 1st DCA 2002), does not

analyze the question of whether section 742.14 applies to donors who

provide donations in laboratory settings because that issue was not

presented to the court. Additionally, Budnick v. Silverman, 805 So. 2d 1112

(Fla. 4th DCA 2002), is distinguishable because it concluded that section

742.14 does not apply to a conception that happened “the old-fashioned

way,” so it did not address the method employed here, an at-home artificial

insemination process.

29

a basis for reversal. The matter of Appellant’s paternity is a necessary

element of proof to “an action to determine paternity,” as Appellant’s petition

stated, and he was able to present full and competent argument regarding

the issue. See, e.g., Gingola v. Fla. Dep’t of HRS, 634 So. 2d 1110, 1111

(Fla. 2d DCA 1994) (“The party seeking to establish paternity bears the

burden of proof by clear and convincing evidence.”); G.F.C. v. S.G., 686 So.

2d 1382, 1385–86 (Fla. 5th DCA 1997) (holding that man who declared

himself to be biological father of child born to intact marriage “failed to allege

sufficient facts to assert a constitutionally based cause of action

for paternity”).

Second, the statute is not unconstitutional as applied to Appellant.

Instead, Appellant relinquished his rights and claims to any resulting child at

the time of his sperm donation by failing to execute a pre-planned adoption

agreement. The plain language of section 742.14 provides that Appellant has

no parental rights or obligations with respect to the child and, therefore,

Appellant has failed to demonstrate that section 742.14 violates his rights

under both the United States and Florida Constitutions. I would therefore

affirm the final judgment in its totality. For that reason, I respectfully dissent.

30