Big Victory for Gay Parents

In three lesbian cases, California Supreme Court affirms co-parent rights, obligations

In a trio of significant opinions issued on August 22, California’s highest court reaffirmed its earlier ruling that a child can have two mothers and then applied that principle to parenting disputes arising from several lesbian partnership break-ups.

The import of these rulings is perhaps best conveyed by commentary offered by the anti-gay, right-wing Liberty Counsel.

“By saying that children can have two moms, the court has undermined the family,’ said Matthew Staver, an attorney with the group. “[That has] underscored the importance of amending California’s Constitution to preserve marriage as one man and one woman.’’

In all three cases, the six-member court—shy one justice due to the resignation of Janice Rogers Brown to take her seat on the U.S. Court of

Appeals in Washington—agreed unanimously that a child can have two legal mothers, but in the most complicated of the cases the court was divided on the outcome, producing two dissenting opinions in a 4-2 vote.

In all three cases, Justice Carlos R. Moreno, an appointee of former Democratic Governor Gray Davis, wrote the opinion for the court.

The most complex case, K.M. v. E.G. as the two women at odds were identified in court papers, involved both egg and sperm donation. The two women met in 1992. E.G. soon after began pursuing artificial insemination, but after several unsuccessful procedures through late 1994, was advised by her doctor that she was not producing sufficient eggs to become pregnant. By this time, the couple was living together and a fertility specialist suggested that K.M. donate eggs to E.G. so that she could become pregnant.

E.G. claims that she agreed to this on the understanding that she would be a single mother and that although the women would raise the child, only she would be listed on the birth certificate and be considered the child’s mother, despite the genetic relationship to K.M. E.G. made K.M. promise not to reveal to anyone that the child was conceived using her eggs.

K.M., in contrast, claims that she only agreed to donate her eggs based on the understanding that the women would raise the child as a couple. She denied that E.G. had insisted that she be considered a single parent.

The women also offer differing accounts about the documents K.M. signed waiving her parental rights. E.G. says K.M. had the documents well in advance of the ova donation procedure and that the couple thoroughly discussed them. K.M. contends she was first confronted by the documents just minutes before the procedure and barely read and signed them before it began.

Twins were born to E.G. in late 1995, and only she was listed as a parent on their birth certificates. The women jointly raised the twins until their relationship ended in early 2001, when K.M. sued to get a declaration of her parental rights. E.G. moved to dismiss the case, arguing that K.M. had earlier waived her rights.

Marin County Superior Court Judge Randolph E. Heubach granted E.G.’s motion, finding a clear written waiver by K.M. The Court of Appeal affirmed, finding that the evidence showed that only E.G. intended to be the twins’ parent when they were conceived. The court analogized K.M. to a sperm donor whose parental rights are cut off when he donates sperm through a doctor for the insemination of a woman not his wife.

The Supreme Court, granting K.M.’s appeal, found that analogy invalid, and also found that the pre-conception waiver was not determinative.

Moreno’s opinion for the court drew two dissents, but he rejected their arguments that the court was departing from settled precedent and making new law.

As the most recent second-parent adoption case made clear, the California Supreme Court accepts the proposition that a child can have two parents of the same sex. But there was one earlier case, Johnson v. Calvert, in which the court specifically stated that a child cannot have two mothers, one in which a surrogate carried the ova of a woman unable to sustain a pregnancy, having been impregnated by the ova donor’s husband. When the surrogate sought to assert her own parental rights, the court was saddled with a case in which three people were claiming to be parents, and focusing on the original intentions of the three at the time of conception, it ruled against the surrogate, who had no genetic relationship to the child.

In the K.M. case, the court explained that the earlier decision was really about a child not being able to have three parents, not about any bar to having two mothers.

Moreno asserted that the California statute on sperm donors does not apply to this situation, “in which K.M. supplied ova to impregnate her lesbian partner in order to produce children who would be raised in their joint home.” The court said its ruling was not based on an examination of the women’s intentions as such, but rather on the fact that the twins are biologically related to K.M. and that the women raised them jointly until the relationship broke up.

In the second case, Elisa B. v. Superior Court of El Dorado County, the lesbian co-parent of twins born through donor insemination had promised to continue supporting them after breaking off her relationship with their mother, even though she never adopted the children. When her economic circumstances changed, Elisa reneged on her promise and since the mother, Emily, was unemployed, support of the children, one of whom needed expensive medical care, fell largely on the county welfare agency, which sued Elisa for child support.

El Dorado Superior Court Judge Gregory W. Dwyer found that since the women had intended to raise the children jointly as co-parents, Elisa had a support obligation and could be held to that obligation by the county. The Court of Appeal reversed, seizing upon Johnson v. Calvert as precedent that a child cannot have two legal mothers.

In reversing yet again and ruling for the county, Moreno explained once more the limited relevance of Johnson v. Calvert, and specifically endorsed a reading of California statute that a lesbian co-parent has the responsibilities of a parent when she plans donor insemination with a partner with an intention of sharing parenting responsibilities. None of the justices used Johnson v. Calvert in dissent in this case, though one wrote a separate opinion that a prior ruling involving a non-biological father’s attempt to escape support obligations made the outcome in Elisa B. a “foregone conclusion.”

In the third case, Kristine H. v. Lisa R., the court addressed a question that affects the status of hundreds, perhaps thousands, of co-parents who used a procedure devised by lesbian activists during the 1990s—before California had begun to enact domestic partnership legislation—in order to achieve legal parental standing without the hassles and uncertainties of adoption. A pregnant woman and her lesbian partner would petition the court for a declaration, called a stipulated judgment, that they were both parents of the expected child. Both names would thereby appear on the birth certificate and co-parentage was established from birth.

Kristine and Lisa split up two years after their child was born and the birth mother filed a lawsuit to have the prior declaration invalidated so her former partner’s parental rights would end. Los Angeles County Superior Court Judge Richard A. Curtis denied Kristine’s motion to vacate the stipulated judgment, finding that it was validly issued. The Court of Appeal reversed, finding that parentage is a legal issue determined by the court, not by the parties’ own agreement, in a ruling that put in jeopardy all such judgments.

The Supreme Court reversed, but on the technical ground of estoppel, finding that since both parties had relied on the stipulated judgment, fairness dictated that it not be overturned.

“Estoppel long has been utilized to prevent a party from contesting the validity of a judgment that was procured by that party,” wrote Moreno, finding that it was not necessary to determine the validity of the judgment.

In doing so, the court effectively precludes anyone who was a party to a stipulated judgment from trying to have it vacated later on, and protects the arrangements put in place by such an agreement.

Though a bit of a stop-gap, this ruling will becoming less relevant as time goes on because the state’s new domestic partnership law provides an alternate means for same-sex couples to establish joint parental rights.

Lesbian and gay litigation groups played a major role in securing these rulings, with lengthy lists of “friends of the court” in all of the cases, including the National Center for Lesbian Rights, the American Civil Liberties Union, and Lambda Legal.

In the most complex of these cases, K.M. v. E.G., there were LGBT briefs on both sides, with local gay bar associations and other groups filing in support of E.G. while the leading national gay legal organizations filed on behalf of K.M.—reflecting the particularly divisive questions at stake and the disagreements about the underlying facts.

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