Court Affirms Gay Couples’ Parental Status

Times Staff Writers

The California Supreme Court on Monday became the first in the nation to grant full parenting rights and obligations to gays and lesbians who have children.

In three closely watched cases, the justices set rules in an area where changes in family structure and advances in technology have outpaced the evolution of legal principles. In each case, they delivered a ruling that guaranteed that children born to gay couples have two legally recognized parents.

Each of the cases involved a lesbian couple who had children and later split up.


In one case, the court ruled unanimously that a lesbian mother cannot avoid paying child support for her partner’s biological children who were conceived when the pair lived together.

That ruling puts lesbian couples on a par with unmarried couples whose relationships end.

In a second case, the justices, on a 4-2 vote, held that a Marin County woman who provided eggs to a partner, who was then artificially inseminated, is legally the children’s second mother.

That ruling came despite the fact that before the children were conceived, the woman who donated the eggs had signed an agreement with her partner waiving parental rights.

The third case, involving a Los Angeles-area couple, was decided largely on procedural grounds. It upheld the parental rights of a woman whose partner became pregnant through artificial insemination while the two lived together.

Other state courts have granted partial rights in the form of custody or visitation without acknowledging full parental status, said Courtney Joslin, senior staff attorney for the National Center for Lesbian Rights, which represented the mother seeking child support.

“The court broke ground,” Joslin said, adding that the ruling will affect “thousands and thousands” of same-sex couples and their children.

The rulings came as the battle over the rights and obligations of gay families is heating up statewide.

A case challenging the constitutionality of California’s law limiting marriage to “a man and a woman” is moving through the courts and is expected to reach the justices next year. And a bill that would allow same-sex marriage has been revived in the Legislature.

On the other side of the debate, opponents of gay marriage are pushing to place several constitutional amendments on the June 2006 ballot that would ban same-sex marriage and roll back domestic partner benefits. Those existing domestic partnership rights already cover many gay couples with children. For children born after Jan. 1 of this year, state law says that children born to registered domestic partners should be treated the same as children born to married couples.

But tens of thousands of gay couples -- no one knows precisely how many -- had children before the domestic partnership law went into effect or have not registered as domestic partners. For them, the rules have been confusing and often inconsistent.

Monday’s rulings sought to bring order to the legal chaos. The rulings drew praise from advocates for gay rights and were sharply criticized by groups opposed to same-sex unions.

“We believe these rulings, taken together, are a victory for kids,” said Tom Dresslar, a spokesman for Atty. Gen. Bill Lockyer, whose office filed a brief in the child support case that was cited by the court. “The rulings recognize that the children of same-sex couples have the same interest in maintaining to the maximum extent possible ties to the people who raised them and love them.”

By contrast, Randy Thomasson, president of Campaign for Children and Families, which opposes gay marriage, said the court’s position “goes against nature.”

“Despite junk science and frustrating rulings like this, children still need a mother and a father,” Thomasson said. “A child does not have two mommies or two daddies; a child comes into this world because she has a mother who gave her egg and a father who gave his sperm.”

The court’s stand “ignores the self-evident truth that God designed a man and a woman to fit together and participate in the miracle of procreation,” he said.

The court’s first case involved two women known in the legal filings as Elisa B. and Emily B., who lived together in El Dorado County. The two women originally agreed that each should become pregnant by artificial insemination from the same semen donor.

Elisa got pregnant first and in 1997 delivered a son, Chance, who was healthy. A few months later, Emily had twins; one had Down syndrome. Both women breast-fed all three babies. They gave the children the same hyphenated surname.

The two agreed that Emily would be the “stay at home mother” for all three children while Elisa worked. Elisa provided medical coverage and listed all three as dependents on her income tax forms.

After six years, the relationship came apart. Elisa left with Chance in 1999 and moved to San Francisco. She helped Emily financially until May 2001, when contact and money were cut off, according to court records. Emily applied to El Dorado County for welfare benefits, and the county tried to make Elisa pay child support.

Lower courts divided on the case. A trial court ruled that Elisa was a “de facto legal parent” and had to pay, but a Court of Appeal said no. According to the appellate court, state law allowed only one person to be a child’s mother. Elisa was legally the mother of the child she bore, but not of the children her partner gave birth to, the appellate court ruled.

The high court disagreed. “We perceive no reason why both parents of a child cannot be women,” Justice Carlos Moreno wrote for the unanimous court.

“It is undisputed that Elisa actively consented to, and participated in, the artificial insemination of her partner with the understanding that the resulting child or children would be raised by Emily and her as co-parents, and they did act as co-parents for a substantial period of time. Elisa received the twins into her home and held them out to the world as her natural children,” Moreno wrote.

“Having helped cause the children to be born and having raised them as her own, Elisa should not be permitted to later abandon the twins simply because her relationship with Emily ended,” Moreno wrote.

Three years ago, the court ruled that men who establish themselves as parents are entitled to become legal fathers even if they did not help conceive the child. “These legal principles apply with equal force in this case,” Justice Joyce Kennard wrote in a concurring opinion. “What is sauce for the gander is sauce for the goose.”

Children cannot choose their parents and should not be deprived of the benefits of having two people to provide financial and emotional support just because their parents are lesbians, the justices said.

“I think these decisions protect children and their relationships with people who are their family members,” said Alice Bussiere, an attorney with the Youth Law Center in San Francisco who filed a friend-of-the-court brief.

“The children had a really big stake in these cases. If they had gone the other way, they would lose a relationship with someone they considered a parent and in one case financial support as well.”

At a press conference, Emily B. said the ruling “means that I’ll be able to get off welfare and food stamps” and possibly Medi-Cal. “I just really want to thank the justices for seeing to it that these children have two equal parents.”

Until now “there was a class of children that were just not seen and had no legal rights,” she said.

Kaia, one of her 7-year-old twins, stood at her mother’s side, grinning broadly, while Ry ran through the hallways. Emily B. said her ex-partner’s position was “unfathomable to me.... I was abandoned with two children and went from a six-figure income to living on $15,000 a year.”

Mathew Staver, the attorney for Florida-based Liberty Counsel, a group opposed to same-sex unions, said his group had opposed Emily B. in court to defend what he said was an important principle.

“Our position is the biological parent is the only parent, period, unless there’s an adoption, and in this case their wasn’t,” he said. “I think you have to put the parental rights of the biological parent or adoptive parent first.”

“On the surface, it might have appeal that you’d want to have someone who has means support someone who doesn’t,” he added. “But to give parental rights and indicate that a child has two moms I think undermines the rights of all biological parents.”

Though the court was unanimous in the Emily B. case, the justices were more sharply divided on the Marin County case, with the court’s four men siding against its two female justices.

That case involved a lesbian couple who decided to have a child together. One of the women, known in the case as K.M., donated her eggs to her partner, E.G., who was artificially inseminated. K.M. signed a document when she donated the eggs in which she waived her parental rights.

The two lived together after E.G. gave birth to twins in December 1995 and raised the children together, listing both mothers as parents’ on the children’s school forms. When the relationship ended in March 2001, E.G. insisted on sole custody. K.M. went to court.

In their 4-2 ruling, the justices said that California law gives parental rights to both mothers even though K.M. had signed a waiver form.

“When partners in a lesbian relationship decide to produce children in this manner, both the woman who provides her ova and her partner who bears the children are the children’s parents,” Moreno wrote for the majority.

Justices Kathryn Mickle Werdegar and Kennard each dissented.

Werdegar said the majority, in trying to clarify the law, had muddled it by calling into question the validity of written agreements that an unknown number of couples had relied on.

“Precisely because predictability in this area is so important, I cannot agree with the majority that the children in this case do in fact have two mothers,” Werdegar wrote. “Until today, when one woman has provided the ova and the other has given birth, the established rule for determining disputed claims to motherhood was clear: We looked to the intent of the parties.”

“We cannot recognize K.M. as a parent without diminishing E.G.'s existing parental rights,” Werdegar wrote, warning that doing so might violate E.G.'s rights under the U.S. Constitution.

Diana Richmond, the attorney who represented E.G., said she was considering an appeal to the U.S. Supreme Court.

Richmond said she was particularly troubled that the majority had given short shrift to the waiver that K.M. had signed.

But K.M.'s attorney, Jill Hersh, said she was thrilled at the outcome. At Hersh’s office, K.M.'s eyes watered as she described painful years away from the children, fraternal twins who are now 9.

“If you have children, you can only imagine what it’s like to be separated from your children and feel their grief,” said the Marin County woman, who released only her first name: Kim.

“It’s been my life every day to wait and wait and wait and persevere.... I do hope that the decision provides hope to other families. No children should have to endure what my children have had to endure.”


Romney reported from San Francisco, and Weinstein from Los Angeles.