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.

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  1. 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

    The flip side of that is that a married man IS legally the parent of any child conceived while married regardless of dna. Even if it ain’t his kid.

    Californicate pretends to be progressive but this state is as idiotic as any other.

  2. Everything would be so much simpler under Sharia law.

  3. oops, meant to hit preview. With respect to the foregoing I think the primary difference between this case and a male sperm donor is anonymity.

    In this case the woman specifically donated eggs for a specific person for a specific baby. If the guy’s wife can’t get preggers and they bring in a designated hitter I’m pretty sure the man is on the hook for parenthood.

  4. I remember one of the first contracts cases I had to read in lawr skule dealt with some relative promising a kid money to forebear from smoking, drinking, cursing and/or something like that. The nephew did what was required, but the court would not enforce the contract. Quaint notion that contracts don’t have a place in family relationship matters. Maybe its why pre-nups need to be pre, too.

    So maybe this case is not too much of a departure?

  5. Everything would be so much simpler under Sharia law

    Everything would be so much simpler of the state would simply honor contracts. Instead, everybody gets to say ‘oops, didn’t really mean that’.

  6. Are you serious that a married man is the father of his wife’s child, even in the case of an affair?

    I guess the following holds true then.

    1) Never marry an pregnant woman, until after the birth.
    2) If the fatherhood of the fetus is in question, divorce immediately.

  7. hey – whenever there’s a reference to “Heather Has Two Mommies”, i stand up and cheer.


    (looks around. sits down)


  8. So to turn that around, if a man living with his girlfriend impregnates her via artificial insemination rather than intercourse, he shouldn’t be the father as long as he had a contract between them saying he wasn’t?

    Can two people enter a contract defining their relation to a third person who does not yet exist, and does that contract bind the unborn third person? In this instance it would appear that the state is acting on behalf of the child, who is not party to the contract. So the egg donor is the mother of the child, whether or not she and the surrogate agree.

  9. Maddog-
    Right, that’s the notion. But in general, sperm and egg donors are able to waive parental rights and obligations–there would presumably be a *lot* fewer willing donors/recipients if that weren’t the case. So the question of waivability ends up turning on the relationship between donor and birth-mother. What if they’re good friends? Former lovers? Friends who’ve dated off-and-on over the years?

  10. Julian and Maddog –

    Sperm donors generally *can’t* waive parental rights and obligations unless they act through a gov’t approved third party (2nd paragraph below):


    However, if artificial insemination is accomplished by a married couple using donated sperm (AID) (a misnomer because “donors” are usually paid), the issue arises as to who is the child’s father. The traditional presumption in the law is that a child born to a married woman is the legitimate child of the marriage. The presumption may be rebutted, however, for example, by the husband’s sterility, which is often the reason that AID is used. To determine paternity, many states have adopted Section 5 of the Uniform Parentage Act, or legislation based on that section. Section 5 is limited to artificial insemination used by a married couple. The UPA treats the child conceived by a married woman by AID as the child of the husband, not of the sperm donor. The husband is “treated [in law] as if he were the natural father” of the child.

    Section Five requires that the insemination be performed under the supervision of a licensed physician and with the written consent of the husband, signed by him and his wife.

    Absent “Section Five,” private contracts between a donor and recipient are generally ignored, a la:
    “A southern Indiana elementary school teacher promised not to seek financial support from a co-worker and boyfriend if he provided sperm.

    The court ruled in a 2-to-1 decision that Edward S. owes child support for Francine T.’s daughter[sic], now 5, despite any written agreement made by the mother.”

  11. I think the dude who does family law for the BarBri said it best. “Always include ‘best interest of the child’ in your answer and you won’t fail the question.” If you don’t want to shell out for 18-25 years, don’t become a party to child generation in any named capacity. The correct response to any request to so act is, “I am sorry its so hard for you to have a kid and I am honored that you thought of me despite my genetic shortcomings, however, my financial advisor tells me this would be a huge mistake.”

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