Metropolitan News-Enterprise


Wednesday, May 12, 2004


Page 1


C.A. Rejects Egg Donor’s Claim to Be Parent of Partner’s Child


By KENNETH OFGANG , Staff Writer/Appellate Courts


A donor of genetic material is a legal parent of the resulting child only if that was the parties’ intent at the time, and extrinsic considerations such as the nature of the parties’ relationship and the best interests of the child cannot enter into the determination, the First District Court of Appeal has ruled.

Div. Five affirmed a Marin Superior Court judge’s decision rejecting the claim of K.M., as she was identified in the opinion, to be a legal parent of twin girls, now eight years old. K.M. and the girls’ mother, E.G., lived together for 21 months before the twins were born and for more than five years afterward, but split up in 2001.

The mother and the children now live in Massachusetts, where they moved before K.M. filed her parentage action in 2002. K.M.’s attorney told the MetNews she will seek Supreme Court review of Monday’s ruling, in which Justice Mark Simons said there was substantial evidence to support Marin Superior Court Judge Randolph E. Heubach’s finding that the parties intended for E.G. to be the sole legal parent.

Under the California Supreme Court surrogacy case, Johnson v. Calvert (1993) 5 Cal.4th 84, Simons added, it is the parties’ intention at the time of conception that controls.

Johnson involved a couple who retained a surrogate to give birth to their child.

The couple and the surrogate entered into a written agreement in which the surrogate disclaimed any parental rights. An embryo created from the couple’s gametes was implanted in the surrogate, who gave birth and subsequently changed her mind about giving up parenthood.

The surrogate sued to determine parentage under the Uniform Parentage Act. The high court ruled that the couple were the child’s sole parents because that is what the parties intended.

Although K.M. and E.G. had no written agreement, Simons said, there was a good deal of evidence, albeit disputed, indicating that E.G. had no intention of giving birth to a child that would have another legal parent and that K.M. understood that.

The justice cited evidence that E.G. had been exploring parenthood before she became involved with K.M., and had made numerous attempts at getting pregnant without her partner’s genetic material, even after the couple registered as domestic partners.

It was only after 12 failed attempts at artificial insemination at fertility clinics, the evidence showed, that E.G. went to a fertility practice at UC San Francisco Medical Center. There she attempted in vitro fertilization using her own eggs and donated sperm, but the efforts failed because she was unable to produce enough eggs.

It was a UCSF doctor who suggested that her partner might be an egg donor, according to testimony.

E.G. said she was hesitant to agree because the couple had been together only a short time and she did not want to risk a future custody battle. E.G. testified that she eventually agreed to the donation, but only after K.M. agreed that she would be a “real donor” and would not claim parental rights.

The pair discussed the possibility of a future adoption, but E.G. said she told her partner she would only consider adoption after about five years because she wanted an assurance of the stability of the relationship.

In concluding that the parties did not intend a two-parent family, the trial judge gave significant weight to a form K.M. signed at the time of the donation.

The form included the following statements:

“It is understood that I waive any right and relinquish any claim to the donated eggs or any pregnancy or offspring that might result from them. I agree that the recipient may regard the donated eggs and any offspring resulting therefrom as her own children;” and  

“I specifically disclaim and waive any rights in or [to] any child that may be conceived as a result of the use of any ovum or egg of mine, and I agree not to attempt to discover the identity of the recipient thereof.

“I waive the right of relationship or inheritance with respect to any child born of this procedure.”

K.M., who wants joint custody, admitted signing the form but denied having gone over it with E.G. in advance. She said she was given the form at UCSF and signed it within minutes, believing it was pro forma and that it had nothing to do with determining legal rights as a parent.

But Simons noted that K.M. has a master’s degree and conceded that she understood the language of the form, and that she made no attempt to alter the language. And the appellate court, he said, was bound by the trial judge’s findings that K.M. signed the form knowingly and voluntarily, and that her testimony regarding her understanding of the form’s effect was “contradictory and not always credible.”

Simons agreed with the plaintiff and disagreed with the trial judge on one point, concluding that the genetic relationship between K.M. and the child makes her an “interested person” with standing to bring an action under the UPA. Her situation differs, the justice said, from those of birth mothers’ lesbian partners who have no genetic connection to the children, and who have been held to lack standing under the UPA and to have no parental rights absent an adoption.

But the trial judge’s ruling on the merits, after a seven-day trial, was sound, the justice said, rejecting the plaintiff’s argument that the parties’ actions after the children were born showed an intent to form a two-parent family.

“The parties’ pre-conception intention that E.G. would be the sole legal parent until adoption impliedly contemplated that the parties would remain together as a couple and that the children and others might regard K.M. as a second parent,” the justice reasoned. “E.G.’s acceptance of K.M. as a joint parental figure in the children’s lives was consistent with the parties’ initial intentions and provides no basis for a finding of repudiation of those intentions.”

In any event, the justice said, had the parties changed their minds and agreed on joint parenthood, they could have provided for it through adoption.

K.M.’s attorney, Jill Hersh of San Francisco, said her client was “very sad” and would “certainly” take the case to the state’s highest court.

Hersh disputed the court’s analysis of both the facts and the law. The ruling, she said, disregarded “a very large body of undisputed evidence of intent.” The two women, she said, in fact created “a family in which the children believe that they have two mothers.”

Diana Richmond of San Francisco, E.G.’s attorney, said she was “thrilled at my client’s complete vindication on the law and the facts.” The decision in the “highly unusual” case, she said, is “evenhanded and fair” and will allow same-sex couples to make their own choices as to how to handle the question of parenthood

The case is K.M. v. E.G., 04 S.O.S. 2319.


Copyright 2004, Metropolitan News Company