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The California Supreme Court Considers Three Broken-Up Lesbian Partnerships, And Finds, In Each, That A Child Can Have Two Mothers

Tuesday, Sep. 06, 2005

In a surprising set of decisions issued at the end of August, the California Supreme Court solidified both the rights and obligations of a woman with respect to a child born to her lesbian partner. Confronting questions of child support and parental status, the court held, in essence, that a lesbian partner who agrees, with her partner, to bring a child into the world, but is not the child's biological mother, has the same rights and obligations as other legal parents.

The law regarding same-sex parents has been developing in a piecemeal fashion. There are relatively few statutes that address the many issues that arise, which leaves courts to grapple with applying laws intended for mothers and fathers, to situations involving two mothers or two fathers. And, because of the nature of the caselaw process, courts only decide the particular issues raised by any given case.

The California decisions are thus striking. Eschewing the piecemeal approach, they hammer out a general framework for courts' treatment of lesbian parents and their children. And they represent the first time that a state's supreme court has accorded full parental status to each of two mothers for the same child without the benefit of adoption.

This framework arose out of a trilogy of cases. I will consider each in turn.

The First Tale of Two Mothers: A Biological Mother and Her Ex-Partner

In the first case, a woman named Emily was artificially inseminated with sperm from an anonymous donor and gave birth to twins. (Her partner, Elisa, had become pregnant the same way, with sperm from the same donor, a few months earlier.)

In every respect, Emily and Elisa became parents together. They had lived for several years prior as partners, had commingled their lives in financial and other ways, and, together, had decided to have children. They were present for each other's inseminations, prenatal medical appointments, and deliveries. Emily and Elisa each breast-fed all three children and they identified themselves, in many contexts, as co-parents. Emily stayed home with the children, one of whom has Down's Syndrome, and Elisa fully supported the five-member family.

Neither Emily nor Elisa ever adopted the other's biological children, however. And the result is a cautionary tale that suggests that gay and lesbian couples are well-advised to take this crucial legal step.

Emily and Elisa separated when the children were toddlers. While Elisa continued to support Emily and the twins for sometime thereafter, she eventually ceased doing so. Emily then sued for child support, and, in response, Elisa denied being the "parent" of Emily's twins; her position was that she was mother only to the child to whom she had actually given birth.

Do Lesbian Co-Parents Owe Child Support If They Do Not Adopt? The Relevant California Statutes

In California, like other states, there is a bulky statutory and regulatory structure in place to ensure adequate support for children. As a general matter, parents, regardless of gender, have a legal duty to support their children, and that is that.

What made the outcome of Emily's petition uncertain, however, is the requirement that an individual be considered a "parent" before being saddled with child support payments. No one doubted that Emily was the mother of the twins to whom she'd given birth. Consistent with California law, however, could Elisa - who had not adopted them - also be considered their mother? Or, put another way, can a child have two legal mothers? The California court, unanimously, said yes.

Parentage in California, as in many other states, is governed by the Uniform Parentage Act (UPA), which defines the "parent and child relationship" for legal purposes.

Mothers are considered parents if they have given birth to, or legally adopted, a child. Since Elisa had not legally adopted the twins, she could not, under this definition, be their mother.

But could she be something like a female father? The UPA directs that the provisions related to the establishment of a father-child relationship should be applied to mother and child relationships as well, "insofar as practicable."

And under the statute, legal fatherhood is more complicated than motherhood: A man is presumed to be the father if he is the husband of the child's mother, if he voluntarily admits paternity, or if he holds a child out as his own.

Elisa did not marry Emily, but perhaps that was because she could not: Gay marriage has yet to become legal in California (though a case testing the validity of the ban is working its way through the appellate system there). And arguably, by co-parenting the twins, Elisa in some sense held them out as her own.

Also, the structure of Elisa and Emily's arrangement - both opting to have children from the same male sperm donor - arguably bespeaks an intention to treat the children as part of the family, regardless of which partner gave birth to which child. By both getting inseminated by the same donor, Elisa and Emily might simply have been trying to maximize their chances of having a child (or several children) that would be "their" child, in a way in which a straight couple with an infertile woman could not.

The Key Precedent: A Child Can Have "Only One Natural Mother."

In deciding the case, the California Supreme Court had to grapple with one of its own precedents, Johnson v. Calvert. There, the Court had addressed a triangle involving a husband who provided the sperm, his wife who provided the egg, and a surrogate mother who carried the child. And it had held that a child can have "only one natural mother." That mother, the court decided, was the child's "biological" mother - the wife, rather than the surrogate. It preferred that option to the solution to that of leaving the child with three legal parents.

Here, however, the Court's words came back to haunt it. Here, there were only two potential parents of the twins - Elisa and Emily. (The UPA and similar laws all agree that an anonymous sperm donor has no legal relationship to any resulting child.) Emily is clearly a "natural mother" to the twins under California law. But, the court concluded, Elisa is also their parent.

By analogy, the court applied one of the "presumed father" categories to Elisa. She had, indeed, openly received the twins in her home and held them as her own "natural" children. She had claimed them as dependents on her tax returns, told her employer she was the mother of triplets, and consented to the use of a hyphenated surname that combined the two women's names. Along with Emily, Elisa even breastfed the twins, which is a greater physical connection than most presumed fathers could establish.

Prior California cases had established that a person could be considered a "natural" parent even when there was admittedly no biological connection between parent and child, so Elisa's lack of a biological relationship to the twins was not an insurmountable obstacle to the court's considering her their "natural mother."

Because Elisa had "actively consented to, and participated in, the artificial insemination of her partner with the understanding that the resulting child or children would be raised by Emily and her as co-parents, and they did act as co-parents for a substantial period of time," the court refused to let Elisa - who wanted to deny parenthood, remember - rebut the presumption of legal parenthood.

Thus, just as men who are not the biological father are sometimes held, nonetheless, to be the legal father of a child, Elisa was held to be a legal parent of Emily's twins.

Permitting a child to have two mothers might seem a stretch under existing law, which seems to contemplate only mother-father-child relationships. Yet California's new domestic partnership law (which I discuss in a prior column) provides for exactly this result. Since January 2005, the law has provided that a registered domestic partner has all the same rights and obligations with respect to her partner's child as a spouse.

And prior to adoption of the current domestic partnership law, the California Supreme Court had permitted a child to have two female parents, upholding the adoption by one woman of her female partner's biological child in Sharon S. v. Superior Court.

Another Tale of Two Mothers: Egg Mother and Womb Mother

A second case, K.M. v. E.G. decided the same day as Elisa B., involved a different two-mother claim: K.M. donated eggs to her registered domestic partner, E.G., to use for in vitro fertilization. But at the time of the egg donation, K.M. signed a standard form relinquishing any claim to any resulting offspring. Now, however, K.M. wants to be considered the child's mother - and E.G. opposes that. Is K.M. the mother of the resulting twins?

Whether both women intended to be "parents" of these twins, is less clear than in Elisa B. K.M. claims that they planned to raise any children together, but E.G. says she always intended to be a "single parent" with a "supportive" partner. They raised the children together for five years, with intertwined lives, before splitting up in 2001.

The legal posture of this case is different than the previous one. Here, K.M., unlike Elisa, has a biological connection to the twins. She was, after all, the egg donor. The question, then, is whether the provision stating that a man who donates sperm to a woman other than his wife is not the father of any resulting child, should apply to her (or, alternatively, if the form relinquishing parental rights is binding).

In another landmark decision, the California Supreme Court said no: Since K.M. supplied eggs to her lesbian partner "in order to produce children who would be raised in their joint home," the sperm-donor-provision should not be used to block her status as a parent.

Recall the provision of the UPA that directs courts to apply the father-child provisions to women "insofar as practicable." An appellate court had done that in this case, and concluded that K.M. was equivalent to a sperm donor - and thus lacked parental rights.

The UPA provisions, though, are designed to facilitate anonymous sperm donation - a socially useful practice that permits infertile or single women to conceive children. A man would be reluctant to donate sperm for use by recipients he did not know, if there was a possibility he might be tagged for child support; and women would be reluctant to be impregnated with donated sperm if the donor might some day assert a claim for custody.

The situation for K.M. and E.G. was obviously different, and the California high court agreed that the facts did not present a "true" - that is, anonymous, no-strings-attached - "egg donation" case.

K.M. did not intend, after all, to give away her eggs, never to be seen again, as anonymous sperm (and, presumably, some anonymous egg) donors do. She intended, rather, that the eggs would be used to produce children that would live with her.

It was thus reasonable, under the UPA, to grant both her and E.G. parental status with respect to the twins. (The Colorado Supreme Court has reached a similar conclusion in In re Interest of R.C.)

And given the decision in Elisa B., the California court was not barred from declaring two women to be mothers of the same children. K.M. is the children's mother, the court concluded, because she provided the eggs from which they were produced and E.G., the court concluded, is their mother because she gave birth to them.

A Third Tale of Two Mothers: A Custody Fight, with a Birth Certificate as Evidence

Finally, the California Supreme Court decided a third case involving a conflict between two women over their rights and responsibilities to children - and again, found that both were, legally, their mothers.

In Kristine H. v. Lisa R., the court ruled that a woman who had stipulated that her partner was the "second mother/parent" to her impending child, could not later deny that characterization.

In this case, while Kristine was pregnant, she and Lisa filed a "Complaint to Declare Existence of Parental Rights" with the superior court. They took this step because state law would permit Lisa to be listed on the child's birth certificate (in the space provided for "father") only if her parental status had been legally recognized.

With stipulations from both Lisa and Kristine that Lisa would be the "other parent" of Kristine's baby, the court issued the requested judgment. As a result, both women were listed on the birth certificate, and the baby was given a surname that combined the two women's last names.

Two years later, they separated. Lisa sought custody of the child, and Kristine asked that that the stipulated judgment of Lisa's parental status be vacated. While this case presents some of the same questions as the two other cases decided that day, the court decided it on purely procedural grounds.

A basic legal principle - estoppel - was used to prevent Kristine from changing her mind about Lisa's rights. In very general terms, the doctrine of estoppel prevents a person from getting the legal benefit of acting inconsistently with an earlier position taken in court, if the result would injure another. Here, Kristine's reversal would, if followed, have hurt Lisa - who wanted to be the child's mother - and arguably would have hurt the child too, who had had two years to emotionally bond to Lisa, as well as Kristine.

The estoppel doctrine had previously been used in California to preclude a man from challenging the validity of a stipulated judgment of paternity.

The situation here was very similar. Kristine had stipulated to the judgment and benefited from its issuance; and, as noted above, her reversal would, if made legally enforceable, hurt Lisa and arguably their child, as well.

Application of the estoppel doctrine permitted the court to dodge what might have been a tricky question - whether individuals can create parental status by agreement, if the provisions of the UPA do not otherwise establish it. Even with the concurrent decisions in Elisa B. and K.M., it is not clear how the court might have ruled on this issue.

(Renouncing parental status by agreement is typically invalid (except in the special case of anonymous sperm donors), for it conflicts with exclusive state law definitions of parenthood, and because a third party, the child, is involved. But creating parental status by agreement might be a different matter.

Unlike an agreed renunciation, the agreed creation of parental status might inspire the kind of reliance the law arguably should be reluctant to disrupt: Emotional reliance by all parties concerned, including, when the child is aware of the agreement, the child. Interestingly, though, such reliance would arguably be erased by an express statutory prohibition on creating parenthood by agreement. Thus far, though, no such prohibition exists.)

The "Two Mothers" Issue May Arise With Increasing Frequency

The California Supreme Court has, with these cases, taken on important issues. According to 2000 census data, nearly 600,000 American households are anchored by a same-sex couple, and nearly a quarter of them are raising children. They face the same complications as heterosexual parents when their relationships dissolve.

Whether or not states legalize or recognize same-sex marriage, they will have to deal with the very real issues of parental rights and obligations for the many children being brought into the world by same-sex couples.

The approach hammered out in these three decisions is, by and large, a sensible one. As judges often do, the court has applied old laws to new situations, with an important underlying public policy -- the protection and adequate support of children -- as a guide.

Let's hope that, in coming years, more state legislatures shoulder the burden in establishing frameworks that meet the needs of all families. Rather than living with uncertainty, state legislatures may want to adopt, by statute, an approach similar to that which the California Supreme Court has taken.

Joanna Grossman, a FindLaw columnist, is a professor of law at Hofstra University. Her columns on family law, trusts and estates, and discrimination, including sex discrimination and sexual harassment, may be found in the archive of her columns on this site.

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