Metropolitan News-Enterprise


Tuesday, August 23, 2005


Page 1


Supreme Court Says Mother’s Lesbian Partner Is Child’s Other Parent


By KENNETH OFGANG, Staff Writer/Appellate Courts


A child conceived through artificial insemination is the legal child of the birth mother’s lesbian partner because the couple raised them together prior to splitting up, the California Supreme Court unanimously ruled yesterday.

“We perceive no reason why both parents of a child cannot be women,” Justice Carlos Moreno wrote for the court in Elisa B. v. Superior Court, 05 S.O.S. 4042 one of three related cases decided yesterday by the justices. “That result now is possible under the current version of the domestic partnership statutes, which took effect this year,” Moreno explained.

The legislation provides that a same-sex couple “who have chosen to share one another’s lives in an intimate and committed relationship of mutual caring” and have a common residence may form a partnership with all of the rights of marriage, except that they may not file joint income tax returns and do not enjoy any right limited to married couples by federal law.

The statutes also provide that “[t]he rights and obligations of registered domestic partners with respect to a child of either of them shall be the same as those of spouses.”

The case was brought by El Dorado County to establish the parentage of a woman identified only as Elisa B. and require her to support the twins born to her former partner, Emily B.

Rings Exchanged

Elisa B. testified that the couple entered into a relationship in 1993, exchanging rings, opening a joint bank account, and agreeing to have children. Both attempted to be inseminated with a common sperm donor, Elisa B. testified, so that their children would “be biological brothers and sisters.”

Elisa B. gave birth in November 1997, four months before Emily B. had the twins. All three children were given the same surname, consisting of the mother’s last names joined by hyphen.

The couple separated in November 1999. Elisa B. continued to support Emily B., the children’s stay-at-home mother, until early 2001.

In July 2002, El Dorado Superior Court Commissioner Gregory W. Dwyer ruled that because the couple intended to, and did, act “in all respects as a family,” the twins were the children of both of them. “Legal parentage is not determined exclusively by biology,” the commissioner said.

Dwyer ruled that Elisa B. was equitably estopped to deny parentage after the birth mother relied on her promise to jointly raise and support the children. Having chosen “to step in [the] shoes” that would normally be filled by a biological father, the commissioner wrote, Elisa B. should assume responsibility for the children—one of whom has Down’s syndrome—and not shift that responsibility to the taxpayers.

Elisa B. was found to be the twins’ parent and to pay $1,815 in monthly child support.

The Court of Appeal disagreed, saying Elisa B. was not a parent within the meaning of the Uniform Parentage Act, a position rejected yesterday by the high court.

Case Distinguished

Moreno distinguished Johnson v. Calvert (1993) 5 Cal.4th 84, in which it was held that a wife whose ovum was fertilized in vitro by her husband’s sperm and implanted in a surrogate mother was the mother of the child so produced, and that the surrogate had no parental rights, as the parties intended when they formed the surrogacy agreement.

The court, the justice noted, acknowledged that either the wife or the surrogate could qualify under the UPA, but expressly rejected the contention that it was possible for the father, the wife, and the surrogate to all be the child’s parents. But it did not, Moreno explained, “address the question presented in this case of whether a child could have two parents, both of whom were women.”

The court, he noted, has previously ruled that a child can have two female parents as a result of “second parent” adoptions. It is entirely consistent with the UPA, he said, to find that Elisa B., while having no biological connection to the twins, be treated as a parent when she had “held them out to the world as her natural children”—breastfeeding them, claiming them as dependents on her tax returns, telling her prospective employer that the twins and her natural child were triplets, and “candidly” testifying that she considered herself their mother.

Chief Justice Ronald M. George and Justices Marvin Baxter, Kathryn M. Werdegar, and Ming Chin concurred in the opinion.

Justice Joyce L. Kennard concurred separately, saying the result was “a foregone conclusion” in light of In re Nicholas H. (2002) 28 Cal.4th 56, which held that a man who was listed as the father on the child’s birth certificate and had held the child out as his own was the legal father even though there was no possibility of his being the biological father because the mother was already pregnant when they met.

In the second case, K.M. v. E.G., 05 S.O.S. 4049, the justices ruled 4-2 that a woman who donated genetic material so that her partner could conceive through in vitro fertilization was the child’s other parent regardless of the parties’ intent at the time.

The justices overturned lower court rulings rejecting the claim of K.M., as she was identified in the opinion, to be a legal parent of twin girls, born in 1995. 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 moved to before K.M. filed her parentage action in 2002. Marin Superior Court Commissioner Randolph E. Heubach found that the parties intended for E.G. to be the sole legal parent, and the Court of Appeal affirmed based on the “intention test” of Johnson v. Calvert.

Moreno, joined by George, Baxter, and Chin, distinguished the situation in which sperm is donated for medically supervised artificial insemination. In that case, the sperm donor, by statute, is the father of the child.

Where a woman donates ova to her partner to produce a child to be raised in their joint home, Moreno said, the principles of the UPA require that she be treated as a parent. In a footnote, Moreno suggested that the result might have been different had the couple not registered as domestic partners.

Kennard and Werdegar authored separate dissents. Werdegar complained that to reject the intention test in this situation “inappropriately confers rights and disabilities on persons because of their sexual orientation.”

In the last case, Kristine H. v. Lisa R., 05 S.O.S. 4058, the court unanimously ruled that where a lesbian couple stipulated to a judgment—during the pregnancy—under which the birth mother’s partner assumed the rights and responsibilities of parenthood, the partner was estopped to attack the judgment later on the ground that the child had not yet been born when the stipulation was entered into.


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