A lesbian whose eggs were used to impregnate her partner, who then gave birth to twins, has no parental rights even though she is the biological mother, a California state appeals court said. Tuesday's ruling, which is to be appealed to the state supreme court, adds another legal twist to parental custody disputes, which are routinely between a man and woman. The case underscores that laws dealing with parental rights for gay or lesbian couples are unmapped territory.
The decision, based on a dispute between a California lesbian couple who both reared twins after one woman gave birth using the other's eggs, is based squarely on a 1993 California supreme court parental rights precedent. But a lesbian rights group and the attorney for the woman who sought parental rights after the two split up say Tuesday's opinion is outdated and that the court discounted evidence that the couple intended to rear the children as joint parents. The appeals court, however, ruled that the birth mother, who was artificially inseminated at a San Francisco hospital, has full parental rights despite her partner's being the genetic mother of the children. "An adoption decree would provide objective, formalized proof of the parties' parentage intentions," the first district court of appeal ruled.
But the genetic mother's attorney, Jill Hersh, said her client "didn't adopt, because she was the biological mother. She didn't think she had to. The legal system hasn't caught up with the modern-day facts of this case." Hersh and the National Center for Lesbian Rights said the ruling is a blow to gay and lesbian couples. But the birth mother's attorney, Diana Richmond, said the decision "beautifully upholds the freedom of choice of same-sex partners on whether both partners will or will not be the parents." She said the women in this case, whose identities the court did not disclose to protect the privacy of the 8-year-old twins, "had agreed that only one of them will be the parent.... She would have to adopt. They never agreed to an adoption, and no adoption proceedings were initiated."
The court ruled that although the woman who donated her eggs was a loving, at-home parent, "functioning as a parent does not bestow legal status as a parent." Shannon Minter, an attorney for the National Center for Lesbian Rights, said if the genetic mother, identified in court papers as K.M., had been a man, she would have been awarded rights to the children, who moved with the birth mother to
Massachusetts and have little contact with the genetic mother. "This is just a tragedy for our community," Minter said. "Our families are just as real as anybody else's. These children are going to be just as hurt as anybody else would by losing a parent. Regardless of being married or not, if K.M. was a man, she would have been automatically, without question, a legal parent."
Minter based that assertion on a California supreme court decision in 2002 that granted a nonbiological father parental rights to a child he helped rear since birth. But the appeals court based its decision on a 1993 California supreme court precedent in which a surrogate mother tried to back out of giving her child to a married man and woman. The supreme court held that the adoptive parents were the
lawful parents because it was their intention, not the birth mother's, to be the parents when the child was conceived. The genetic mother donated her eggs to her partner in 1995. The women lived together in Marin County with the children until they separated recently. The egg donor went to court to assert parental rights. A lower court, and now the appeals court, said she has none.