In a hearing with potential implications for the same-sex marriage debate, the California supreme court on Tuesday is considering whether children born to same-sex couples who do not register as domestic partners should be treated the same under the law as the out-of-wedlock offspring of opposite-sex couples. Justices are hearing oral arguments in three child custody and support cases involving lesbians who parted ways acrimoniously after becoming mothers. All three cases center on whether laws crafted to shield children from the stain of illegitimacy by establishing clear parental rights
and responsibilities for absent fathers apply when an estranged couple consists of two men or two women.
Gay rights and children's advocates say the answer is simple: that adults who help to bring children into the world with the intent of raising them should be regarded as parents, regardless of sexual orientation, marital status, or blood ties. Yet absent adoption papers or a formal domestic partnership, lower courts have shied away from recognizing the nonbiological mother or father in a broken gay family. "To the child, a parent is a parent because that is the person who got up in the night and held them and put Band-Aids on their knees, so it's very unfair to children to draw these distinctions," said Deborah Wald, a San Francisco family law attorney with a large lesbian clientele. "California is so clear about that when we are dealing with a mother and father, but when it comes to lesbian couples the courts have been the scalpel to remove children from the parents they deeply bonded to."
But lawyers for the three women who want to limit either their financial obligation to a former partner's children or an ex-lover's access to their own argue the situations are not analogous. Laws intended to establish parentage in circumstances where both a mother and father played a biological role in conceiving a child can't be translated so easily to situations where conception required the use of reproductive technology, by necessity leaving one partner without a biological connection, they maintain. "What I think is at stake is people in relationships where they do not intend to vest parental rights in their partner are going to find they are in litigation over whether their partner is a presumed parent," said Honey Kessler Amato, the lawyer for a biological mother known in court papers as Kristine H., who wants to keep her ex-partner from acquiring custody of the daughter they conceived
with a sperm donor. "It will enter into heterosexual couples who are living together for a period of time."
As in any breakup that involves children, the stories behind the cases brought by women in Los Angeles, Marin, and El Dorado counties are full of the pain that accompanies any love gone awry. Kristine H., for example, is seeking to invalidate a court order she and her former partner, Lisa R., entered into before Kristine gave birth to their daughter that allowed Lisa to be listed on the baby's birth certificate on the line reserved for a father. In another case, involving two Marin County women identified only as K.M. and E.G., a woman who carried and gave birth to twins conceived with her ex-partner's eggs is trying to retain sole custodial rights because her partner signed a waiver at their fertility clinic relinquishing legal control. The last case, from El Dorado County, involving Elisa B. and Emily B., concerns whether the breadwinner in a lesbian relationship is financially responsible for the children her partner bore while they were together.
It's unclear how many same-sex couples would be affected by the court's ruling. Many gay men and lesbians take the step of adopting children who were conceived with a partner's sperm or eggs to establish an unambiguous legal link. And since a law granting domestic partners in California nearly all the spousal rights of marriage took effect this year, parentage has been presumed to apply equally to both mothers or fathers when children are born during the course of a registered relationship.
Nevertheless, gay rights advocates say the lower court rulings now on appeal expose a fundamental inequity in the way California treats unmarried heterosexuals and gay couples who decide not to register as domestic partners or go through second-parent adoptions. "Just like heterosexual parents, whether or not they are married, when a couple creates a child together they both take on responsibility to the child they created," said Jennifer Pizer, senior counsel for Lambda Legal. "Lesbian and gay parents should not have a free pass from those established family law rules."
The high court's handling of the three cases is being closely watched by gay rights advocates and their opponents as a bellwether for where the justices might stand on a related social issue headed its way--whether same-sex couples in California should be afforded the right to marry. (AP)