California high court resolves legal status of same-sex parents.

In a trio of landmark rulings, the California Supreme Court has held that a person who joins in parenting a child may have legal status as a parent regardless of sexual orientation or a biological connection to the child. The court issued separate but simultaneous rulings in three cases involving lesbian couples who had jointly raised children conceived with artificial reproductive technology, but had later separated. The rulings settled a split among state appeals courts over the status of parents in same-sex relationships.

Courtney Joslin, senior staff attorney with the National Center for Lesbian Rights (NCLR) in San Francisco, applauded the rulings. "The supreme court has now made it crystal clear that same-sex couples who use assisted reproduction to bring a child into the world are both legal parents, with all the rights and responsibilities that flow from that status, and their children are entitled to all the benefits and protections that flow from the legal parent-child relationship," she said.

In the first case, Emily B. and Elisa B. decided to raise a family together, and both women conceived using the same sperm donor so the children would be biologically related. Emily stayed home to care for her twins and Elisa's son. All three used the same hyphenated surname. Elisa worked to support the family and claimed all three children on her tax returns.

The children were just under two when the couple split. Elisa continued to provide financial support to Emily and the twins for a year and a half but then stopped. Emily began to receive welfare benefits, and the family court ordered Elisa to pay child support, holding that "legal parentage is not determined exclusively by biology." An appeals court overturned that ruling after determining that Elisa did not fit the definition of a parent under the state's Uniform Parentage Act (UPA). (Elisa B. v. Superior Court, 13 Cal. Rptr. 3d 494 (Ct. App. 2004).)

The state supreme court disagreed and ordered Elisa to pay support. "We perceive no reason why both parents of a child cannot be women," Justice Carlos Moreno wrote for the unanimous court. (117 P.3d 660 (Cal. 2005).)

The court noted that the UPA says provisions related to a father-child relationship can also be applied to a mother-child relationship "insofar as practicable." The court referred to an earlier ruling in which it had given parental rights to a man who had welcomed a child into his home, helped raise him from birth, and openly held him out to be his child, even though they had no biological connection. (In re Nicholas H., 46 P.3d 932 (Cal. Ct. App. 2002).)

Applying the same principles in a gender-neutral manner, the court held that Elisa was a "parent" to the twins and responsible for them: "Elisa's present unwillingness to accept her parental obligations does not affect her status as the children's mother based upon her conduct during the first years of their lives."

In the second case, the woman seeking parental rights did have a biological connection to the children--K.M. had donated her eggs for E.G., her then-partner, to conceive. When the women split, E.G. moved with the five-year-old twins to Massachusetts and refused to allow K.M. any visitation or contact with them.

K.M. petitioned the court for parental rights, but both the family court and the appeals court denied her request because when she donated her eggs, she had signed a consent form waiving her rights. Also, the two women gave conflicting testimony about whether they had intended to be parents together: E.G. said she always meant to be the sole parent, while K.M. insisted she donated her eggs with the understanding that she would share that role. (K.M.v.E.G., 13 Cal. Rptr. 3d 136 (Ct. App. 2004); see also Sara Hoffman Jurand, State Appeals Courts Focus on Intent in Egg, Sperm Donor Cases, TRIAL, Aug. 2004, at 78.)

The state supreme court disagreed with the lower courts, applying the reasoning of Elisa B.--that K.M. had rights because the women raised the children together in the home they shared. Moreno distinguished the case from that of a sperm donor, saying the section of the UPA that "provides that a man is not a father if he provides semen to a physician to inseminate a woman who is not his wife does not apply when a woman provides her ova to impregnate her partner in a lesbian relationship in order to produce children who will be raised in their joint home."

In the third case, a pregnant Kristine H. and her partner, Lisa R., sought and received a stipulated judgment from the family court that both women were "the joint intended legal parents" of the child. Lisa was listed on the child's birth certificate in the space provided for "father." When they split two years later, Kristine asked the court to set aside the stipulated judgment so she would be the sole legal parent. She argued that the judgment was not valid because it was issued before the child's birth. Lisa filed a separate motion for custody.

The family court upheld the judgment, but the appeals court set it aside, saying the court should not have judged parentage based solely on the parties' stipulation. But the appeals court also said that Lisa may have some parental rights under the UPA. (Kristine Renee H. v. Lisa Ann R., 16 Cal. Rptr. 3d 123 (Ct. App. 2004); see also Christian Harlan Moen, Mom Can Be 'Dad,' California Court Says, TRIAL, Oct. 2004, at 87.)

The state supreme court ruled that Kristine could not challenge a stipulated judgment that she herself had requested. The court did not directly address whether the agreement was valid, but it did cite its ruling in Elisa B. that a "court can determine that a child has 'two parents, both of whom are women.'" (Kristine H. v. Lisa R., 117 P.3d 690 (Cal. 2005).)

The NCLR's Joslin noted that while other states have allowed nonbiological parents to seek visitation or custody as de facto or in loco parents, and others have allowed them to adopt their same- sex partner's children, no other state supreme court has held that partners in such cases are "full legal parents, without the necessity of adoption." This status is important, she said, because some rights of legal parents--such as the right to make medical decisions or provide the child with Social Security benefits or intestate inheritance--are not given to de facto or in loco parents.

The NCLR represented Emily B. before the state supreme court and filed amicus briefs in the other two cases.

Joslin said the rulings are significant for children of unmarried heterosexual parents as well.

"For several decades, both the U.S. Supreme Court and the California Supreme Court have held that the law must not punish children who are born outside of marriage, but rather embrace and include them equally," she said.

"In the past, however, the parents in these cases have been unmarried biological fathers. These three decisions were an important test of whether the California Supreme Court would continue to adhere to this principle by extending it to nonbiological mothers, without regard to gender or sexual orientation."