Justices Hear Gay Parent Rights Cases

Several members of the California Supreme Court appeared sympathetic Tuesday to arguments that gay men and lesbians who rear their partners’ children as their own without adopting them should have parental rights and obligations.

In a crowded, televised hearing, the court considered three cases involving disputes between estranged lesbian mates over children. The cases are likely to set the rules on child support, custody and visitation rights for thousands of gay couples who split up after having children.

A new state domestic partnership law that took effect this year gave parental rights to both partners in same-sex couples who are registered with the state.

But that law does not cover the children of couples who split up before this year. Neither does it cover the children of couples who fail to register. Only a third of the roughly 100,000 gay and lesbian couples in California are registered with the state, according to the National Center for Lesbian Rights.

Without clearly indicating how they would vote on the cases, the justices observed repeatedly that official state policy favored two-parent families.

Justice Ming W. Chin, one of the more conservative members of the court, said the lesbians who were seeking parental rights in two cases, and the woman who had refused to pay child support in the other, were parents in almost every way before the couples broke up.

In the child support case, Chin said, both women breast-fed each other’s babies, and one declared her partner’s twins as well as her own birth child as dependents on tax forms and beneficiaries of her life insurance.

“What is that beginning to sound like to you?” Chin asked a lawyer for a Northern California woman identified only as Elisa B., who contends that she should not have to pay child support for her former partner’s twins.

But Chin and his colleagues also wondered aloud how they should interpret state parentage laws that refer to men and women without considering the possibility of same-sex couples.

“Do we have to rewrite those statutes?” Chin asked.

Justice Kathryn Mickle Werdegar pointed out that some of the laws were written at a time when reproductive technology was still in its infancy and today’s birth arrangements could not have been contemplated.

Justice Janice Rogers Brown, President Bush’s controversial nominee for a federal circuit court in Washington D.C., expressed concern that giving lesbians parental rights to their partners’ birth children might have unforeseen and undesirable consequences for heterosexual couples.

Could the cases “open up a lot of possibilities for intrusion on parental roles” by people who are practically strangers? she asked.

In the child support case, two women lived together in El Dorado County, became pregnant using the same semen donor and then reared the children together. One of the woman worked to support the family, the other stayed at home.

After they split up, the woman who stayed at home tried to collect welfare for her twins, one of whom has a heart defect and Down syndrome.

The El Dorado County social services agency went to court to force the woman’s former partner to support the twins. State Atty. Gen. Bill Lockyer’s office has also argued that the woman should pay child support.

Among the legal questions the court must answer in determining parentage are whether the women intended to be the parents of the children before birth and whether they later represented the children as their own.

Justice Marvin Baxter said it was clear that both women in the child support case were the presumed parents of the children.

“I don’t see any way around that,” he said. “The question is: What happens after that?”

In the second case heard by the court, a woman identified as K.M. donated her eggs to her former lesbian partner, E.G., who got pregnant with donated semen. The women reared the twin girls together in Marin County for five years.

After they broke up, two lower courts denied K.M. parental status primarily on the grounds that she had waived her rights when she had signed a standard form at the hospital for donating her eggs. Two justices indicated Tuesday that the form might influence how the court decided the case.

“It’s important that we have this form,” said Justice Joyce L. Kennard.

Attorney Diana E. Richmond, who represents the birth mother, said her client insisted from the beginning of the relationship that she would be the only legal parent and would consider adoption by K.M. only if the women’s relationship remained strong into the future.

Jill Hersh, a lawyer for K.M., argued that her client never intended to relinquish parenthood but had to sign the waiver in order to have her eggs removed for her partner.

Hersh said that the women were registered as domestic partners in San Francisco and that K.M. took the girls to the doctor, signed for their inoculations, performed the nighttime feedings when E.G. went back to work and helped pay the girls’ expenses.

“They created a family” and the children perceived her “as their mother, and she bonded to them,” Hersh said, referring to her client.

To that, Werdegar remarked: “That’s the tragedy of these cases.”

Chin stressed K.M.’s strong parental ties to the girls.

“It’s complicated by the fact that K.M. is the biological mother,” Chin said. “ I think that is a powerful fact.”

K.M., who attended the three-hour hearing, said afterward that she was optimistic. Her former partner now lives with the girls in Massachusetts.

K.M. said E.G. had refused to let her visit or call the girls since February 2004. During a business trip to Massachusetts in September, K.M. said, she went by the girls’ school to see them.

“We hugged each other and couldn’t let go, and I told them I was here fighting for them and not to worry,” she said. “And then we cried.”

After listening to K.M.’s case, the justices considered a dispute in Los Angeles County between two lesbians who went to court before their daughter was born to declare the non-biological mother the other parent. The women split up when the child was 2, and the birth mother successfully challenged the pre-birth agreement in court.

Honey Kessler Amado, the lawyer for the birth mother, said such agreements should not take the place of adoptions. She said the agreement legally would not have prevented the semen donor from claiming paternity, because he did not donate his semen in a clinical setting where a formal waiver was required.

“It’s beyond debate that his rights could not have been cut off by this agreement,” Amado said.

Baxter, who has long expressed concern about arrangements that allow for multiple legal parents, wanted to know what would happen if the court determined that both women were the parents and the sperm donor later claimed paternity.

“There is a biological male involved in this case,” he said.

Shannon Minter, representing the National Center for Lesbian Rights, said the donor had signed a statement relinquishing his rights and submitted a declaration to the court supporting parenthood for both mothers.

Brown had different concerns. Saying heterosexual couples could be affected if the court upheld the pre-birth agreement, she asked, “Why would anyone ever adopt?”

Leslie E. Shear, the lawyer for the non-biological mother, said heterosexual couples would not resort to pre-birth agreements because they could simply list themselves as mother and father on the birth certificate to assert parental rights.

The court will decide the three cases within 90 days.