Same-Sex Couples Win Parenting Rights

Calif. Same-Sex Couples Win Parenting Rights

Mike McKee
The Recorder
08-24-2005

Gay rights advocates celebrated while conservative commentators fumed Monday as the California Supreme Court granted same-sex couples parenting rights equivalent to those of their heterosexual counterparts.

The decision, arising out of three cases involving breakups by lesbian couples, holds that both partners in a same-sex relationship are legal parents when they use modern methods of reproductive science to produce and raise children. As a result, the court said, both are entitled to all the rights and responsibilities of parenthood, including custody and child support.

The opinion is reportedly the first of its kind in the country and marks the second gay-friendly decision by the court in the past three weeks. On Aug. 1, the justices held that companies must treat registered domestic partners equally with married couples.

Courtney Joslin, senior staff attorney at San Francisco's National Center for Lesbian Rights who argued one of the cases, declared the rulings "a tremendous victory for children, for parental responsibility and for common sense."

But Mathew Staver, president and general counsel for the Liberty Counsel, a conservative organization based in Orlando, Fla., said the decision "defies logic and common sense."

"By saying that children can have two moms," he said, "the court has undermined the family." The Liberty Counsel was not a party to any of the suits.

Although all three of Monday's cases involved same-sex parenting, each had its own factual and legal issues. The parties and children were identified only by either their initials or their first names and last initials.

In Elisa B. v. Superior Court (Emily B.), 05 C.D.O.S. 7498, El Dorado County sued Elisa B. for child support after she abandoned a six-year relationship with her female partner, Emily B., and reneged on an agreement to help pay expenses for twins birthed by artificial insemination.

In K.M. v. E.G., 05 C.D.O.S. 7504, K.M. filed for parental rights, claiming to be the biological mother of twins conceived when she donated her ovum to partner E.G. three years into their nine-year relationship.

And in Kristine H. v. Lisa R., 05 C.D.O.S. 7511, birth mother Kristine H. tried to set aside a trial court judgment declaring both her and Lisa R. legal parents of a child born in October 2000.

All three cases have caused anguish in the state's gay community, with legions of supporters -- mostly lesbians -- siding with parties on both sides. Advocates for the birth mothers had argued that the cases were less about gay rights and more of an assault on the rights of moms to have authority over the kids they birth.

"This is not about whether it's better for children," Diana Richmond, a Sideman & Bancroft partner who argued on behalf of E.G., said during oral arguments in May. "It's a question of whose decision that is [and] whether the state should interfere."

The court made Elisa B. the lead case and used it to clarify that its statement in 1993's Johnson v. Calvert, 5 Cal.4th 84, that a child can have "only one natural mother," didn't mean that two women couldn't be the dual parents of a child. Elisa B.'s current unwillingness to accept parental obligations, Justice Carlos Moreno wrote, doesn't change the fact that she acted as the twins' mother for years.

"Elisa actively assisted Emily in becoming pregnant, with the understanding that they would raise the resulting children together," wrote Moreno, author of all three rulings and an adoptive father himself. "Having helped cause the children to be born, and having raised them as her own, [Elisa] should not be permitted to later abandon the twins simply because her relationship with Emily dissolved."

Quoting an amicus curiae brief submitted by the California State Association of Counties, Moreno wrote that anyone who helps bring children into the world and holds them out as her own "should be responsible for the support of those children -- regardless of her gender or sexual orientation."

In both Elisa B. and Kristine H. -- the latter in which the court simply ruled that Kristine H. can't attack the validity of the agreement to which she stipulated -- the six justices voted unanimously.

But Justices Joyce Kennard and Kathryn Mickle Werdegar dissented in K.M. v. E.G., pointing out that K.M. voluntarily signed a document declaring her intent not to become a parent of the twins birthed by E.G. Kennard agreed with the lower courts' reasoning that analogized ovum donors, such as K.M., to sperm donors with no parental rights.

"The majority's desire to give the twins a second parent is understandable and laudable," Kennard wrote. "To achieve that worthy goal, however, the majority must rewrite a statute and disregard the intentions that the parties expressed when the twins were conceived."

In her longer and more strongly worded dissent, Werdegar said the all-male majority's decision "inappropriately confers rights and imposes disabilities on persons because of their sexual orientation." She also said the opinion "vitiates" prebirth agreements and "threatens to destabilize ovum donation and gestational surrogacy agreements."

"One important function of Johnson's intent test was to permit persons who made use of reproductive technology to create, before conception, settled and enforceable expectations about who would and would not become parents," Werdegar wrote. "Johnson thus gave E.G. a right at the time she conceived to expect that she alone would be the parent of her children -- a right the majority now retrospectively abrogates."

San Francisco attorney Jill Hersh, who represented K.M., celebrated with her client on Monday and said the ruling in her case provides "parity for gay and lesbian couples."

"If two women in a committed relationship use their combined reproductive systems to create children, they are both the natural, legal mothers," said Hersh, head of the Hersh Family Law Practice. "It's that simple."

NCLR's Joslin, who represented Emily B., said that the point of the decisions "is that the court applied existing family law to these children." She said that while some states have recognized nonbirth parents as de facto or equitable parents, Monday's decision is the first by a state Supreme Court to label such people as fully equal parents.

Emily B., attending a news conference at the NCLR offices with twins Ry and Kaia, called Monday "absolutely an incredible day to be a parent." She said she can now stop turning to the state for welfare checks and food stamps.

She also said she will consider seeking visitation rights for Chance, a boy born to Elisa B. in 1997, two years before the couple separated.

Honey Amado, a Beverly Hills solo practitioner who represented Kristine H., expressed disappointment in the ruling in her case, saying that the high court gave her client "short shrift" by simply ruling that she couldn't attack the validity of her prebirth agreement.

"The court ultimately gave no guidance to the bench or the bar in regard to future prebirth judgments," she said. "How do we create parental rights in our state? These prebirth judgments are in contravention of adoption statutes."

Reporter Pam Smith contributed to this report.