Running head: "WHOSE CHILD IS THIS?"

"Whose Child Is This?": Determining legal status for lesbian parents who utilized assisted reproductive technologies

Jan Hare, Ph.D.*

Denise Skinner, Ph.D.*

*Professor

University of Wisconsin-Stout

College of Human Development

Department of Human Development and Family Studies

Menomonie, WI 54751

harej@uwstout.edu

*We thank Brent Skinner, J.D., Brynn Metzger-Hare, J.D., Jeanne Rothaupt, Ph.D. and Susan Wolfgram, Ph.D. for their insightful comments on this paper.

The purpose of our paper is to demonstrate that a traditional adult-centric paradigm for determining parentage does not equitably address the rights and responsibilities of families headed by same-sex couples and to suggest that these families (specifically, lesbian couples who have utilized assisted reproductive technologies) are better protected by a child-centered analysis that determines parentage. We present three California lower court decisions involving lesbian parents each of which made their way up to the state’s Supreme Court. The decisions by the California Supreme Court reflect the changing face of American families and recognize the child’s need for two parents, regardless of gender.

The California Supreme Court, embedded in a state whose political culture has been responsive to social concerns, has often addressed novel issues of legal parentage. The Supreme Court decisions from this state promise legal protection for many children born into nontraditional families in California (Wald, 2005). Thus, we believe examining these child-centered decisions provides an opportunity to identify a rationale and criteria upon which to base future policy which addresses the question under consideration in this paper: Whose child is this?

Kristine H. v. Lisa R. [Kristine H. v. Lisa R. 120.App.4^th 143 (Cal. 2004)]. Kristine and Lisa began an intimate relationship in 1992. After several years in a committed relationship, they decided to have a child through artificial insemination. Kristine was inseminated at home with sperm provided by a friend who agreed in writing that he would not seek custody or visitation rights. Kristine became pregnant and throughout Kristine’s pregnancy, Lisa accompanied her to pre-natal appointments and participated in parenting classes. In order for the hospital to list Lisa on the birth certificate, the two women were required to obtain a pre-birth agreement pursuant to the California statute declaring that they were the "joint intended legal parents" of the unborn child. The agreement further specified that both parties would retain parental status in the event the relationship ended. This pre-birth agreement was approved by the family court indicating, "Kristine is the ‘biological, genetic, and legal mother/parent’ of the unborn child." Furthermore, Lisa "is the legal second-mother/parent of the unborn child". In October 2000 Lisa attended the delivery and was named as "father" on the baby’s birth certificate. The baby girl was given a surname formed by hyphenating Kristine and Lisa’s surnames. Believing that the previously obtained court-approved agreement was adequate to establish her parental rights, Lisa never adopted the child. The couple separated in May shortly before the child’s second birthday. Kristine filed an action to terminate Lisa’s status as a legal parent. Lisa filed a complaint seeking to re-establish the couple’s earlier co-parenting agreement (Manternach, 2005; New, 2006).

The family court denied Kristine’s motion to sever Lisa’s parental status, and Kristine appealed. The Court of Appeal concluded that even though the pre-birth agreement was void since parentage cannot rest simply on the parties’ agreement, Lisa was nonetheless entitled to assert parentage under the UPA. The court maintained that Lisa did, in fact, "hold the child out as her own" as evidenced by participating in the artificial insemination procedure, fulfilling childcare responsibilities, supporting Kristine economically and emotionally throughout the pregnancy, and paying for the child’s medical insurance. It was further observed that Lisa was the intended parent: both women acted jointly to bring about their child’s birth and their plans to raise the child together led them to obtain a stipulation providing that they were the legal parents of the unborn child (Kotlyarevskaya & Poster, 2006).

Elisa Maria B. v. Superior Court. [Elisa Maria B. v. Superior Court 118 Cal.App.4^th 966 (Cal. 2004)]. Elisa and Emily began living together in 1993. In 1996 the couple decided that each of them would conceive using artificial insemination and they would experience pregnancy and birth together. They selected the same anonymous sperm donor so that the children would be biologically related. Both women were inseminated, and each became pregnant. Emily and Elisa attended each other’s pre-natal appointments and parenting classes. Elisa gave birth to a boy in 1997, and Emily gave birth to girl/boy twins in 1998, one with Down Syndrome. They joined their surnames and gave the children the same hyphenated surname. Elisa obtained life insurance naming Emily as the beneficiary so that the family would be cared for if Elisa died. Although they each consulted an attorney about adopting one another’s children, they did not follow through with the idea. In addition, they did not enter a domestic partnership under California law.

After the birth, Emily stayed home to care for all three children. Elisa, the higher earner, provided financial support, paid for medical insurance for all three children, and claimed them as dependants on income tax returns. After the couple separated in November 1999, Elisa orally agreed to provide $1,000 per month for mortgage payments on the house in which Emily and the twins continued to live. Emily applied for public assistance from the state. When they sold the house, Emily and the twins moved into an apartment in November 2000, and Elisa paid Emily $1,000 a month. In early 2001 Elisa stated she lost her position and told Emily she could no longer support her and the twins. At the time of trial, Elisa was earning $95,000 a year. In June 2001 the county filed a complaint on behalf of Emily to "establish [Elisa’s] parentage" of the twins and to enforce child support obligations. Elisa claimed she had no obligation to pay support because she was not a parent of the twins. The California Appellate Court granted Elisa’s request holding that Elisa was not a parent within the meaning of the UPA and thus was not obligated to pay child support (Manternach, 2005; New, 2006; Roberts, 2005).

K.M .v. E.G.: [K.M. v. E.G., 118 Cal.App.4^th 477 (Cal., 2004)].

K.M. and E.G. met in 1992. They began living together in 1994 and registered as domestic partners under California law later that same year. From March 1993 to November 1994 E.G. unsuccessfully attempted to become pregnant using artificial insemination with 13 different tries. K.M. accompanied her to most of these appointments, and she maintained that she and E.G. had planned to raise the child together. However E.G. asserted that she had always intended to become "a single parent" (Parness, 2006).

After multiple failed attempts at pregnancy, including failed in vitro fertilization, EG’s physician suggested in 1995 that she use K.M.’s ova. K.M. agreed to donate her eggs to E.G. E.G. testified that she made it clear at that time that she intended to "be the mother of any child", while K.M. stated that she only agreed to donate her eggs because she and E.G. had agreed they would raise the child together. E.G. said she would consider adoption by K.M., but not for at least five years when she believed the relationship would seem more permanent. She said she had seen too many lesbian relationships end quickly, and she did not want to be involved in a custody battle (Parness, 2006; Zgonjanin, 2005).

The two women selected a sperm donor together, and K.M. signed a Consent Form for Ovum Donor (Known), agreeing to waive rights to the donated eggs or any pregnancy that may result. In addition, she waived rights to a relationship with any child born of this procedure. K.M. admits to reading the form, but believed that parts of it did not pertain to her since she already knew the recipient and lived with her (Parness, 2006). She claimed that she would not have agreed to donate eggs if she had known E.G. intended to be the sole parent. She did, however, acknowledge that she agreed to K.M.’s request that she not tell anyone that she donated the eggs.

Ova were harvested from KM, and a few days later embryos were transferred to the uterus of EG. Twin girls were born on December 7, 1995, and their birth certificates listed EG as the mother and did not reflect a father’s name. KM asked EG to marry her, and the couple exchanged rings on Christmas Day (Parness, 2006). As agreed, neither of the women told anyone KM had donated the ova, including friends, family, and the twins’ pediatrician (Jacobs, 2005; Zgonjanin, 2005; re. K.M. v. E.G., 2005).

Within a month after the births, E.G. made the twins beneficiaries to her insurance plans, but K.M. did not. Both E.G. and K.M.’s parents were referred to as the twins’ grandparents. School forms listed both women as the children’s parents (Parness, 2006).

In 1998 the couple began to argue about whether to tell the twins they were genetically related to K.M. While K.M. insisted upon adoption, E.G. was still reluctant (Zgonjanin, 2005). The couple separated in March 2001; E.G. terminated the domestic partnership and took the twins to Massachusetts to live with her mother. E.G. acknowledged K.M. as the children’s parent on a Massachusetts school form, and each of the women paid half the school tuition. E.G. stated she did not want K.M. to have rights or obligations towards the girls because the couple agreed prior to the conception that E.G. would be the sole parent. K.M. sought to establish a parental relationship, requesting joint custody of the twins because she claimed that she and E.G. had always planned to have children together (Parness, 2006).

The appellate court upheld the trial court’s finding, determining that K.M. was not a legal parent primarily because she waived her parental rights when she donated her eggs. The court concluded that under the UPA only one mother can be declared. Furthermore, the court rejected K.M.’s argument that she functioned as a parent and found that "functioning as a parent does not bestow legal status as a parent" (Jacobs, 2005, p. 13).

Can a child have two legally recognized parents of the same sex? This was the question before the court in each of these three cases. The California Supreme Court, in its review of the lower court decisions, responded in the affirmative, using both traditional equitable principles (a body of principles constituting what is fair and right) and the principles of the UPA (Roberts, 2005).

In Kristine H. v. Lisa R (Kristine H. v. Lisa R. 37 Cal.App.4^th 156 , Cal., 2005) the California Supreme Court upheld the Court of Appeals by recognizing Lisa, the non-biological parent, as "presumed father" under the UPA. It found that Kristine’s motion to terminate Lisa’s parental status should be denied based on the traditional equitable doctrine of estoppel, e.g., a defensive doctrine preventing one party from taking unfair advantage of another when, through false language or conduct, the person to be estopped has induced another person to act in a certain way, with the result that the other person has been injured (Black’s Law Dictionary, 1999.) In other words, having sought approval of a pre-birth agreement from a court that had jurisdiction over parentage matters and having benefited from that approved agreement, Kristine could not now challenge it. Specifically, a child could have two mothers by agreement of the parties. Once this agreement is officially sanctioned and carried out, it is binding on those parties (Roberts, 2005).

In Elisa Maria B. v. Superior Court (Elisa Marie B. v. Superior Court, 37 Cal.4th 108, Cal., 2005) the California Supreme Court disagreed with the Court of Appeals. The Supreme Court noted that the UPA contains a provision stating that, if feasible, the paternity provisions should be used to determine motherhood as well as fatherhood. The Court noted that under the UPA a man who takes a child into his home and holds the child out as his own is presumed to be the father. Applying that principle, the same is true for the mother. It further noted that Elisa actively participated in the decision to bring the children into the world, lived with them, and held them out as her children and supported them for a period of time. A woman, just like a man, is not allowed to abandon the children under these circumstances. Thus, Elisa is a legal parent and consequently is obligated to provide child support (Roberts, 2005).

In K.M. v. E.G. (K.M. v. E.G., 33 Cal.Rptr. 3d 61, 63,Cal., 2005) the California Supreme Court reversed both the Superior Court and the Court of Appeals. The Supreme Court held that the California Family Code section that applies to sperm donors does not apply to ovum donors when they donate their ova to the partner in a lesbian relationship to produce children with the intention of raising them together. Using the UPA language that motherhood can be established through giving birth and through genetic relationship, the Court found that both women met the UPA standard for motherhood. In addition, the fact that the couple registered as domestic partners under California law was also influential in the Court’s decision. Thus, a child could have two mothers, one a gestational mother and the other a genetic mother, so long as there was a committed relationship between the women and they took the children into their mutual home, holding them out as their own (Roberts, 2005).

During the fireside chat, we will discuss these cases in the context of a child-centered analysis. In addition, we will offer recommendations that can serve as guidelines for family practitioners working with same sex parents as well as policymakers in developing comprehensive legislation. These guidelines not only acknowledge and more precisely respond to the reality of families headed by same-sex parents, but would also provide uniform equitable standards by which to assess parental and children’s rights and responsibilities regardless of family structure.

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