National Center for Youth Law

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NCYL Applauds California SC Decision in Same-Sex Parenting Cases


July 15, 2005


Tracy Schroth
Director of Communications
(510) 835-8098, x3013

NCYL applauds the California Supreme Court’s recent decision granting full parenting rights to gays and lesbians with children. The National Center for Youth Law joined several child advocacy groups that filed an amicus brief in three companion cases decided by the court.

“These three landmark decisions of the California Supreme Court recognize that children born to same-sex couples should have all of the benefits and protections of children born to other parents,” said NCYL Senior Attorney Curt Child. “These decisions go a long way in protecting thousands of California children.”

The Decision: A Brief Analysis

In its August 22 decisions, the court broke new ground by holding that children born to same-sex couples should be protected regardless of the circumstances of their birth. The court ruled that same-sex partners who have cooperated in conceiving and raising children have full parental rights, regardless of their marital status or biological tie to their children. The Supreme Court expressly recognized that lesbian parents who assist in the creation of children and hold them out as their own are parents under the California Uniform Parentage Act (UPA). The child advocacy groups argued in their amicus brief that the state’s commitment to eliminating discrimination against nonmarital children, and the rights afforded all children under the UPA, require the protection of parent-child relationships even in the absence of a genetic tie.

In Elisa B. v. Superior Court, the state sought child support payments from a former lesbian partner who “actively assisted [the other partner] in becoming pregnant with the expressed intention of enjoying the rights and accepting the responsibilities of parenting the resulting children.” Thus, the court noted, the nonbiological partner “accepted those obligations and enjoyed those rights for years. [Her] unwillingness to accept her parental obligations does not affect her status as the children’s mother based upon her conduct during the first years of their lives.” The court distinguished prior language that said a child can have “only one natural mother” stating that “[w]e perceive no reason why both parents of a child cannot be women.” The court relied on Sharon S. v Superior Court, (2003) 31 Cal. 4th 417, which upheld a “second parent” adoption. In that case, the mother of a child conceived by means of artificial insemination consented to her lesbian partner’s adoption of the child. The California Supreme Court noted that if both parents of an adopted child can be women, there is no reason why the same would not be true in this case. The court went on to unanimously hold that the UPA dictates that the nonbiological partner is a parent of the children. Specifically, the court held that Family Code section 7611(d) – which states that a man who receives a child into his home and holds that child out as his own is legally the natural father – applies equally to women. In Elisa B., the court easily found that the facts of the case supported a finding that the partner held the children out as her natural children. Therefore, she has the rights and responsibilities of a natural parent and has a duty to pay child support, the court ruled.

In the second case, K.M. v. E.G., the court held 4-2 that the lesbian partner who supplied the ova to a partner who produced the children is the children’s second mother, even though she later waived her parental rights. The court concluded that “[a] woman who supplies ova to impregnate her lesbian partner, with the understanding that the resulting child will be raised in their joint home, cannot waive her responsibility to support that child. Nor can such a purported waiver effectively cause that woman to relinquish her parental rights,” the court said. Again, the court found that the UPA required such a finding. The genetic relationship to the children constituted evidence of a mother and child relationship as contemplated by the Act. Significantly, however, the court held that Family Code section 7613(b) was not applicable. That statue excludes as a natural parent the donor of semen provided to a licensed physician for use in artificial insemination of a woman other than his wife. The court ruled in this case that the partner “did not intend to donate her ova, but rather provided her ova so that [the other partner] could give birth to a child to be raised jointly by [the partners]” Thus, both partners are mothers of the children under the UPA.

In a dissenting opinion, Justice Joyce Kennard said that section 7613(b) was indeed applicable and that a voluntary signed waiver excluded the donating partner as a parent. She rejected the majority’s finding that the statute was inapplicable when the birth mother “intended that the resulting child would be raised in their joint home.”

Justice Kathryn Werdegar also dissented. She agreed with the majority that section 7613(b) does not apply, but said the reason is because the statute is not intended to apply to ovum donors. She concluded that the inapplicability of 7613(b) does not establish that the donor partner is the children’s mother. The statute merely serves to exclude a possible parent, she stated, rather than establish parentage. Since nothing in the UPA would establish parentage, Justice Werdergar said that questions involving parentage in the context of assisted reproduction should be decided by the legislature.

The last case, Kristine H. v. Lisa R., held that a lesbian partner is precluded from challenging a stipulated judgment of the partners that a child born to one partner would be the child of both partners. The court did not decide whether a stipulated judgment establishing parentage is valid, but instead held that a partner is estopped from challenging the judgment’s validity because it would be unfair to the other partner and the child, and would contravene public policy favoring two parents for a child rather than one. The court noted that the trial court did have subject matter jurisdiction of this issue because the UPA provides that any person may bring an action at any time to determine the existence or nonexistence of a presumed father and child relationship.

In all three cases the court made clear that under the UPA, a child can have “two parents, both who are women.” Importantly, these decisions recognize that that familial relationships stem from emotional attachments as well as from blood relationships. These decisions will help ensure that in California, emotional bonds formed by biological and nonbiological children will be protected, and children will have the financial and practical support of two parents instead of only one.

~ Curt Child. Curt Child is a senior attorney in NCYL’s Sacramento office, specializing in public benefits and legislative advocacy.