NCLR Argues GROUNDBREAKING PARENTAL RIGHTS AND RESPONSIBILITIES CASE

San Francisco Chronicle
SAN FRANCISCO
Court considers parental rights in same-sex cases
Former partners seek child support, visitation orders

Bob Egelko, Chronicle Staff Writer

Wednesday, May 25, 2005

The California Supreme Court appeared to be prepared Tuesday to extend parental rights to gays and lesbians who helped their partner plan and raise a child before separating.

The court heard three hours of arguments in San Francisco in cases from Marin, El Dorado and Los Angeles counties that involved varying facts but a common theme: whether both members of a lesbian couple should be considered parents if they cooperated in conceiving and rearing a child in a family setting, regardless of each partner's biological connection to the child.

Most California courts that have considered the issue have ruled that only a birth parent or an adoptive parent has a legal relationship to the child. A state law that took effect this year grants equal parental status to registered domestic partners, most of whom are same-sex couples. But the law does not apply to partners who had already broken up or to couples who have not registered with the state, two groups that combined outnumber the 27,000 couples now on the registry.

Tuesday's hearing suggested that the state's high court is ready to go a step further and allow lesbians and gays to establish legal parenthood by their intentions before birth and their actions afterward. Rulings in all three cases are due within 90 days.

"Isn't there a state public policy in California that a child shall have two parents?'' Justice Kathryn Mickle Werdegar asked a lawyer who argued that her client had no financial responsibility for her former partner's twins.

"When you have two parents, there is greater emotional and financial support,'' Justice Joyce Kennard told another attorney who argued against parental status for her client's estranged partner.

In one of Tuesday's cases, a Marin County woman identified as K.M. donated her eggs to her partner, E.G., and helped her raise twin girls for five years before the couple separated. Lower courts denied K.M. parental status because she signed an agreement before birth saying E.G. would be the sole parent.

A Los Angeles County dispute between Kristine Renee H. and Lisa R. also involved a prenatal agreement, signed when Kristine was eight months pregnant and declaring both women to be equal parents. An appellate court ruled the agreement invalid but said Lisa - who helped raise the child for almost two years - could seek to prove motherhood under the same law that allows a man to establish fatherhood of a child he treated as his own.

In the third case, Emily B. bore twins and raised them in El Dorado County with her partner, Elisa Maria B., until the couple broke up. Elisa promised to help financially when she could but stopped making payments after 18 months. Emily went on welfare, and the county is suing Elisa for child support.

Emily, who was in court Tuesday, held up photos of the twins, Ry -- who has Down syndrome -- and Kaia, after the hearing and said she was hopeful the court would come to their aid.

"A family is not just a man and a woman,'' she said.

The court struggled with the effects of the prenatal agreements. Diana Richmond, lawyer for the birth mother, E.G., in the Marin County case, said her client, who was infertile, "did everything she could to be a sole parent'' and had accepted eggs from her partner only because she relinquished any claim of parental rights. The state, through its courts, should not "interfere with the decision of a fit parent'' in such matters, Richmond said.

But Justice Ming Chin noted that the former partner, K.M., who now seeks visitation and custody rights, also was a biological parent. "They raised these children for five years together,'' he said.

A different perspective came from Justice Janice Rogers Brown, in what may have been one of her last hearings on the court. A U.S. Senate agreement late Monday ended the prospect of a Democratic filibuster and cleared the way for a confirmation vote on President Bush's nomination of Brown to the federal appeals court in Washington, D.C.

If planning a family and caring for a child are enough to make someone a parent, Brown said, the legally recognized routes to same-sex parenthood -- domestic partnerships and adoption -- might be undermined, and the rights of birth parents could be weakened.

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Children In Gay Families Need Protecting Court Told
by Mark Worrall 365Gay.com San Francisco Bureau

Posted: May 24, 2005 2:00 pm ET

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(San Francisco, California) The California State Supreme Court was told Tuesday that children of same-sex couples need protections equal to those given children in traditional households.

The court was hearing three cases involving the rights of children born to lesbian parents.

In her argument before the court, National Center for Lesbian Rights (NCLR) Senior Staff Attorney, Courtney Joslin, argued that, “all children, not only those born to married or heterosexual parents, must have a legal right to support and care from both people who brought them into the world.”

Outside the court Joslin told reporters that, “the California Supreme Court’s decision will decide whether these children will be protected, or whether we’ll turn the clock back to the day when children born outside of marriage were punished for being ‘illegitimate.’”

Lower courts have ruled that parental rights are limited to the birth mother unless her partner has formally adopted the child. In situations involving in vitro fertilization it would mean the birth mother would have to relinquish her rights as a parent still leaving the child with only one mother.

In each of the three cases before the high court the full names of the parents are withheld to protect the identity of the children.

The first case involves Kristine Renee H. and Lisa Ann R. Parentage judgments often are used by same-sex couples (and different sex couples who have had the help of a gestational surrogate mother) who want to secure the legal relationships between both intended parents and the child early and fast, without waiting the longer period adoptions require; the judgments provide immediate legal ties to the child for the non-biological parent, and also cut off potential legal rights of a sperm donor or surrogate mother. Such judgments have been used for years in California, but are now at risk after a lesbian, Kristine H., sued to have the parentage agreement she entered into with her former partner invalidated. The couple separated two years after the birth of their child.

The second case is that of Elisa Maria B. v. Superior Court. After the couple in this case had children, the relationship ended and Elisa stopped financially supporting twins to whom her former partner had given birth, and her former partner, who was a stay-at-home mom. A trial court ruled that Elisa is a parent to the children because the two women planned the family together and Elisa held the children out as her own and therefore bears financial responsibility for them. The appeals court disagreed, ruling that Elisa should not be considered the other parent to the children and has no obligations to her family.

The third case is K.M. v. E.G. The two women in this case were in a committed relationship and planned a family. K.M. donated eggs to be implanted in E.G. who carried twins to term. They raised the children together for five years before the relationship ended. When the couple separated, E.G. wanted to keep the children from her former partner and is trying to sever any ties K.M. has with the children. A lower court found that since K.M. signed a waiver at the fertility clinic to donate her eggs to E.G., she has relinquished any legal ties to the children born from those eggs. The appeals court upheld that decision.

“There are hundreds of thousands of couples, including many same-sex couples, who rely on assisted reproduction to have children. Without question, those parent-child relationships are just as authentic and real as any others, and they should be protected equally under the law,” Joslin told the court.

Lambda Legal and California Attorney General Bill Lockyer were granted intervener status.

Lawyers for Lockyer told the justices that same-sex couples have the same legal duty to financially support the children they bring into this world as those of opposite-sex couples, because when only one of two people is required to provide support, it's the children who unfairly bear the burden.
But lawyers for the three women who want to limit either their financial obligation to a former partner's children or an ex-lover's access to their own argue the situations are not analogous.

Laws intended to establish parentage in circumstances where both a mother and father played a biological role in conceiving a child can't be translated so easily to situations where conception required the use of reproductive technology, by necessity leaving one partner without a biological connection, they maintain.

Matthew Staver, a lawyer for the conservative group Liberty Counsel told the court that to recognize non-traditional families would be tantamount to recognizing gay marriage.

Staver said that only a family with a mother and a father should be considered legitimate.

The court is expected to rule in about 90 days.

©365Gay.com 2005

NATIONAL CENTER FOR LESBIAN RIGHTS ARGUES
GROUNDBREAKING PARENTAL RIGHTS AND RESPONSIBILITIES CASE
BEFORE CALIFORNIA SUPREME COURT

"All children, not only those born to married or heterosexual parents, must have a legal right to support and care from both people who brought them into the world."

(San Francisco, Tuesday May 24, 2005) This morning the California State Supreme Court heard three cases involving the rights of children born to lesbian parents. In her argument before the Court, National Center for Lesbian Rights (NCLR) Senior Staff Attorney, Courtney Joslin, argued that, "all children, not only those born to married or heterosexual parents, must have a legal right to support and care from both people who brought them into the world."

Joslin argued one of three cases currently pending before the Court. NCLR's client, Emily B., is seeking child support from her former partner, Elisa B., for the twin children that she and Elisa conceived and raised together prior to their separation. All three cases pose the question of whether both partners in a same-sex couple who use reproductive technology to have children together are legal parents, as they would be if the partners were married.

"There are hundreds of thousands of couples, including many same-sex couples, who rely on assisted reproduction to have children. Without question, those parent-child relationships are just as authentic and real as any others, and they should be protected equally under the law," said Courtney Joslin, NCLR Senior Staff Attorney.

According to Joslin, much is at stake with the court's ruling: "The California Supreme Court's decision will decide whether these children will be protected, or whether we'll turn the clock back to the day when children born outside of marriage were punished for being 'illegitimate.'"

NCLR Legal Director, Shannon Minter, argued on behalf of amici in the Kristine H. case, also before the Court.

For twenty-eight years NCLR has been a national leader on LGBT family issues including adoption, child custody and visitation, alternative insemination, partnership protection, domestic partner benefits, and marriage rights.

NCLR is a national legal resource center with a primary commitment to advancing the rights and safety of lesbian, gay, bisexual, and transgender people and their families through a program of litigation, public policy advocacy, and public education. We can be reached through our website at http://www.nclrights.org.