SAN FRANCISCO
- The petite woman in a pinstriped suit
recalled her last visit with her 8-year-old twin
daughters. It had been months since she had seen the
girls, and a court had just ruled that she had no legal
right ever to be with them again.
"I told my girls they
needed to know that every moment of the day, every
minute of every hour, they are in my mind and they are
in my heart," said the 42-year-old Marin County
resident, her face wet with tears.
Known in court papers
only as K.M., the woman is the girls' genetic mother.
She could not bear a child because of a diseased uterus;
her partner, a woman known in court as E.G., was
infertile. K.M. donated her eggs to her partner. Using a
sperm donor, her partner conceived, and the women raised
the twins together for five years.
Three years ago, the
couple split up. K.M. says her former partner no longer
allows her to visit or talk to the girls. Courts have
ruled that K.M. has the legal status of an egg donor and
no parental rights, in part because she signed a
standard donor form at the fertility clinic.
Lagging legal system
The case, which K.M.
has appealed to the California Supreme Court, is one of
a growing number around the United States in which new
reproductive technologies and nontraditional families
collide with old legal principles.
Though courts often
stretch to give children both a legal father and a legal
mother, the formulas for deciding parenthood frequently
do not fit the realities of same-sex couples.
"When you read the
legal cases," said Deborah Wald, a family-law attorney
in San Francisco, "what becomes crystal clear is that
children of same-sex couples aren't entitled to the same
level of protection as children of opposite-sex
couples."
Opponents of same-sex
marriage find that entirely appropriate. Court battles
between gay parents show why couples of the same gender
should not have children, they say.
"Every child needs a
mom and a dad," said Dale Schowengerdt, a staff lawyer
for the Alliance Defense Fund, which wages legal battles
promoting traditional religious views. "Every male
couple deprives a child of a mom; every female couple
deprives a child of a dad."
But advocates for gay
couples say changes in technology and family structures
make those arguments out of date. The last census found
about 27,000 households in the state where children were
being reared by parents of the same gender.
Technology now allows
two women to become the natural mothers of a child, two
men to mix their sperm and create a baby with a donated
egg and a hired surrogate.
"Neither the
Legislature nor the courts are keeping up at all with
the changes," Wald said.
In ruling against K.M.,
a Court of Appeal in San Francisco conceded that the
decision would have "harsh consequences" for the
children.
"There is no dispute
that K.M. acted as an affectionate mother to the girls,
and that the girls are emotionally attached to her," the
judges said, while maintaining that the law left them no
choice.
Expanding the legal
definition of a parent could allow others -- child care
providers and relatives or friends of a child, for
example -- to seek parental status, courts have said.
"Functioning as a
parent does not bestow legal status as a parent," the
appeals court ruled in K.M.'s case.
Changing law
The law in California
is changing. Under a new statute that will take effect
next year, same-sex couples who are registered with the
state as domestic partners will both be legal parents to
children born into their households. But the law will
not affect children born before Jan. 1, 2005.
Same-sex couples who
already have children can ensure parental rights using
other legal processes, including adoption. But until
recently, some counties in California refused to let
same-sex couples employ adoption procedures, Wald said.
Moreover, she said, many couples never go through the
formalities.
"I actually think it is
not all that uncommon for people to never get around to
getting their legal paperwork together in many areas of
their life," she said.
Courts in several other
states have granted custody or visitation rights to
nonbiological parents who had not adopted. Recently, in
the first decision of its kind in California, a Court of
Appeal in Los Angeles ruled that a woman might be
entitled to some parental rights over her former lesbian
partner's objections if she could show that she had
treated the partner's child as her own.
Despite that ruling,
most lawyers say adoptions remain the safest route for
same-sex couples. "If you don't do a second-parent
adoption in California, the other mom can be completely
cut off from her child and the child cut off from
somebody she completely considers her parent," said
Nancy Polikoff, a professor at the American University
Law School in Washington, D.C.
Key cases
Now, two cases --
K.M.'s quest for shared parental rights and an effort by
El Dorado County to force a woman to pay child support
to her former partner -- could change the entire state's
approach. The state Supreme Court is expected to decide
later this summer whether to consider the cases.
In the El Dorado County
case, Emily B., as she is known in court, was the
stay-at-home parent in a lesbian relationship. She and
her partner, Elisa Maria B., decided to have children
using the same semen donor. Elisa got pregnant first and
delivered a healthy boy in 1997. Emily bore twins a few
months later, one with severe disabilities.
The women had attended
each other's medical appointments during the pregnancies
and were both present at the births, court records say.
Both women nursed all three babies, chose their first
names and gave them hyphenated last names.
Emily cared for the
children while Elisa worked. Elisa provided medical
coverage and listed all three as dependents on her
income tax forms.
The birth of three
children so close in time and the special needs of one
of them eventually strained the relationship.
"It was extraordinarily
stressful," Emily said. "I had two children in ICU, she
had a 4-month-old baby, I found out my son had a hole in
his heart and Down syndrome. ... All of us
breastfeeding. ... Our life wasn't the picture I believe
she wanted it to be."
In 1999, after six
years together, Elisa packed up the car in front of
their home, put her son, who was nearly 2, in his car
seat and moved back to San Francisco. She helped Emily
financially until May 2001, when contact and money were
cut off.
Emily eventually
applied to El Dorado County for welfare benefits, and
the county tried to make Elisa pay child support. The
Court of Appeal said no.
"Because Elisa is not
the twins' natural mother and because for obvious
reasons she is not their father, she does not have any
of the rights and privileges of a parent," a
three-member panel ruled May 20. Without those rights,
she also does not have the obligations, the judges said.
Both the county and
state Attorney General Bill Lockyer have asked the high
court to review the case.
In a case involving a
man and a woman who each brought children into a
marriage, both partners would be responsible for all the
children if they later split up.
Rights, responsibilities
"As a matter of public
policy, same-sex couples should have the same financial
responsibilities toward the children they bring into
this world as those of opposite-sex couples," Lockyer
said when he intervened.
In K.M.'s case, the
courts never ruled on the children's welfare. Instead,
the judges said they were bound by precedent to
determine who was the intended parent when the twins
were conceived.
K.M.'s former partner
has said she did not intend to give K.M. parental
rights. She did not want to have custody problems if
they split up. She said K.M. understood.
"Nothing impairs
lesbians and gay men from becoming joint parents by
agreement," said Diana E. Richmond, the lawyer for the
birth mother. "It is just that these two women made a
different agreement."
K.M. denies that she
ever intended to be a mere donor. Her lawyer, Jill Hersh,
argues that intent at conception should not determine
parenthood.
"We know there are
millions of men out there who are treated as fathers who
never intended to be," she said. What should count,
Hersh argues, is how the couple act after the children
are born.
The two women and the
children had lived and acted as a two-parent family, K.M.
says. The couple exchanged rings and gave the twins
their mothers' names as middle names. K.M. said she did
the night feedings when her partner went back to work,
bought the girls clothes and shared decision-making over
schools and where the family would live.
E.G., who earned more
than K.M., paid more of the girls' expenses, but not
all. Both women were listed as mothers on school and
medical records and both attended school conferences.
The girls called their
birth mother "Mama" and K.M. "Boss" or "Mama Boss." They
called K.M.'s parents "Granny" and "Papa."
For years, the two
women did not tell anyone, including the children, that
K.M. was their genetic mother. But K.M. wanted to end
the secret, and the issue became a point of stress that
helped lead to their breakup.
Around the time the
twins turned 5, K.M. revealed the secret -- against the
birth mother's wishes, according to Richmond.
"I told them that some
people have a mom and dad and some people have two
moms," K.M. said. "They asked how did it happen? ... I
told them that they came from my eggs that grew in
(their birth mother.) They were like, 'Wow!'"
E.G. and the girls now
live in Boston. K.M. said that the gifts she had sent
the girls had been returned and that she had not been
permitted to visit them since February.
