State appeals courts focus on intent in egg, sperm donor cases.

A sperm or egg donor does not have parental rights or obligations unless the parties agreed beforehand that he or she would be a parent, state appeals courts in California and Washington recently ruled. The two separate cases involved an egg donor who requested parental rights and a sperm donor who contested parental obligations.

"Both courts were attempting to add clarity to what can be ambiguous contexts," said Susan Crockin, an attorney and author in the field of reproductive technology law in Newton, Massachusetts. To do so, they asked: When the children were conceived, whom did the parties intend to be parents?

In California, K.M. donated eggs to her lesbian partner, E.G., who gave birth to twin girls. The couple raised the children together for five years. However, only E.G. was listed as a parent on the birth certificates, and the couple did not tell friends and family that K.M. had donated the eggs.

When they separated, K.M. petitioned to establish a parental relationship with the girls and receive joint custody. E.G. insisted that she had pursued motherhood on her oval, through adoption and artificial insemination, before meeting K.M. and that she accepted the egg donation only after she had been unable to conceive herself. She said the couple intended that E.G. would be the children's sole legal parent.

Although K.M. testified that the couple had decided to bear and raise children together and that she did not intend to relinquish her parental rights, the trial court found that other evidence contradicted her testimony and supported E.G.'s position. In particular, the egg donor consent form that K.M. signed indicated that she waived her rights and interest in the children. The court found that K.M. lacked standing to bring a parentage claim.

The California Court of Appeals affirmed that E.G. was the sole legal parent but found that K.M. was an "interested party" with standing to bring a claim. The court concluded, however, that the consent form and evidence presented at trial showed that K.M. did not qualify as a parent under the state's Uniform Parentage Act.

Judge Mark Simon, writing for the court, relied on the California Supreme Court's ruling in Johnson v. Calvert, a dispute over a surrogacy arrangement. (19 Cal. Rptr. 2d 294 (1993).) In that case, Simon wrote, the court "articulated the test of maternity as follows: The woman who intended to procreate the child--to bring about the birth of a child whom she intended to raise as her own--is the natural mother under California law." (K.M.v.E.G., 13 Cal. Rptr. 3d 136 (Ct. App. 2004).)

Diana Richmond of San Francisco, who represented E.G., said the case is significant because it preserves "the right of same-sex or opposite-sex couples to choose who will or will not be parents in assisted-reproduction cases, the principle that a child's parentage is determined as close as possible to birth and is not changed by later relationships, and the integrity of sperm- and ovum-donor procedures."

In a very different case, a Washington state appeals court also considered whether a couple intended both parties to be parents before they conceived through artificial insemination. Denying a mother's paternity action against a former boyfriend who donated sperm, the court noted that he did not agree to legal paternity in writing.

Michael Kepl and Teresa Brock were romantically involved for several years. Although he was married to someone else, Kepl donated sperm for Brock to conceive a child. Kepl signed a paternity affidavit, named the child the beneficiary of a life insurance policy, and gave Brock money each month.

After they split, Brock conceived another child, using sperm left from Kepl's donation without his permission. Upon learning of the second child--and upon his wife's discovering the affair and the children--Kepl stopped financial support. He had not signed a paternity affidavit for the second child.

Brock sued for child support and to establish Kepl as the father of both children. Blood tests confirmed that he was the genetic father, and the trial court granted Brock's requests, focusing largely on the couple's consensual sexual relationship.

The appeals court reversed. Judge Elaine Houghton wrote that the state's artificial insemination statute clearly says that a man who donates sperm to a woman other than his wife is not a legal father unless he agrees to parentage in writing at the time of the procedure. Kepl's after-birth paternity affidavit and short-term financial support of the first child do not overcome the artificial insemination statute, die court held.

"I think the courts had concerns about the chaos they might unleash if they did not adhere to the statute in the Washington case and to the consent [form] and supporting factual evidence in the California case," said Crockin. "The Washington court may be in the minority, however; I think most courts will want to recognize intended parents' rights and obligations where they can find support in the law."

She added, "In my practice, I routinely counsel clients, especially single women or any couple in a nontraditional relationship, to enter into a legal agreement that accurately reflects their expectations and not to sign any consent form or other document that does not accurately reflect their intentions, relationship, or anticipated parentchild relationship."