California Supreme Court Rules: Heather Has Two Mommies


This story about a series of California cases recognizing the parental rights (and obligations) of lesbian couples who have children together seems like mostly good news, with one reservation:

Lower courts and dissenting justices noted the woman, K.M., voluntarily signed a document declaring her intention not to become a parent of any resulting children, and should not be granted parental status.

But Justice Carlos Moreno, writing for the 4-2 majority, said a woman who supplies eggs to help impregnate her lesbian partner, with the understanding the child will be raised in their home, cannot evade her responsibility to that child.

And the Times account notes:

The Supreme Court, in a 4-to-2 decision, ruled for K. M. notwithstanding a state law that says a man who donates his semen to impregnate a woman who is not his wife is not a legal father. Justice Werdegar, dissenting, suggested that treating the donation of sperm differently from the donation of an egg "inappropriately confers rights and imposes disabilities on persons because of their sexual orientation" and so "may well violate equal protection."

I suppose I should read the full decision, but the report here makes it sound as though the court is voiding a contract that established that an egg donor wasn't to retain parental rights, on the grounds that donor and birth-mother also had a relationship. Depending on the specifics, that sounds as though it could be a deterrent to asking someone you know to be your egg/sperm donor (or acceding to such a request). To the extent that the decision depends on both women having acted as de facto parents, the risk of interference with mere-donor relationships isn't terribly great, but it does seem to send the message that if only one member of a couple is interested in being a parent, there's no legal mechanism to allow the other partner to help, by providing genetic material, without also taking on the full set of parental rights and obligations. In a sense, it's like an amped up version of a non-waivable habitability requirement for apartment leases: Some people get inefficiently priced out of the market for parenthood. In the particular case here considered, it's at least possible that the biological mother wouldn't have gone through with the pregnancy if she knew her then-girlfriend's waiver of parental rights would be ruled unenforceable.

Of course, it's not exactly like an apartment lease: There are, after all, those very short people to consider. On the one hand, there's surely some value to ensuring the child the support of two parents. But, first, it's not wholly obvious that requiring genetic and legal parenthood to overlap in this way is the ideal way to go about that: The birth-mother might have a new partner who, in light of the previous waiver, would view herself as the child's second parent. Second, this raises a whole spate of thorny philosophical questions about weighing the relative value of a benefit to existing children against the prevention of children whose potential parents opt not to conceive them because of the lack of contractual flexibility.

I wrote about some other aspects of the battle over gay parenthood in our August issue.