Elisa B. v. Superior Court

• Decision Date: 22 August 2005
• Docket Number: No. S125912.,S125912.
• Citation: 117 P.3d 660,33 Cal.Rptr.3d 46,37 Cal.4th 108
• Court: California Supreme Court
• Parties: ELISA B., Petitioner, v. The SUPERIOR COURT of El Dorado County, Respondent; Emily B. et al., Real Parties in Interest.

33 Cal.Rptr.3d 46

37 Cal.4th 108

117 P.3d 660

ELISA B., Petitioner, v. The SUPERIOR COURT of El Dorado County, Respondent Emily B. et al., Real Parties in Interest.

No. S125912.

Supreme Court of California.

August 22, 2005.

Hanke & Williams and Shelly L. Hanke, Garden Grove, for Petitioner.

Liberty Counsel, Mathew D. Staver, Rena M. Lindevaldsen and Mary E. McAlister, San Luis Obispo, for Kristina Sica as Amicus Curiae on behalf of Petitioner.

No appearance for Respondent.

Bill Lockyer, Attorney General, Manuel M. Medeiros, State Solicitor General, James M. Humes, Chief Assistant Attorney General, Thomas R. Yanger, Assistant Attorney General, Margarita Altamirano and Kara Read-Spangler, Deputy Attorneys General for the public interest pursuant to Family Code Sections 17406-17407.

Louis B. Green, County Counsel, Edward L. Knapp, Chief Assistant County Counsel; Mary A. Roth, San Francisco; and Mary Jane Hamilton, Carmichael, for Real Party in Interest County of El Dorado.

National Center for Lesbian Rights, Shannon Minter and Courtney Joslin, San Francisco, for Real Party in Interest Emily B.

Jennifer B. Henning, for California State Association of Counties as Amicus Curiae on behalf of Real Party in Interest Emily B.

Valerie Ackerman and Shannan Wilber, San Francisco, for National Center for Youth Law and Legal Services for Children as Amici Curiae on behalf of Real Party in Interest Emily B.

Alice Bussiere for The Center for Children's Rights at Whittier Law School, The Legal Aid Foundation of Los Angeles, The National Center for Youth Law, The Youth Law Center and Joan Heifetz Hollinger and the Children's Advocacy Project, Boalt Hall as Amici Curiae on behalf of Real Party in Interest Emily B.

Jennifer C. Pizer and Amber Garza for Children of Lesbians and Gays Everywhere, Equality California, Family Matters, Family Pride Coalition, Growing Generations, Lambda Legal Defense and Education Fund, the National Center for Lesbian Rights, Our Family Coalition, the Pop Luck Club and Southern California Assisted Reproduction Attorneys as Amici Curiae on behalf of Real Party in Interest Emily B.

Debra Back Marley and Robert C. Fellmeth for Children's Advocacy Institute as Amicus Curiae on behalf of Real Party in Interest Emily B.

ACLU Foundation of Southern California, Clare Pastore, Christine Sun, San Francisco; ACLU Foundation of Northern

California, Alan Schlosser, San Francisco; ACLU Foundation of San Diego and Imperial Counties, Jordan Budd, Elvira Cacciavillani; ACLU Foundation Lesbian and Gay Rights Project and James Esseks for the American Civil Liberties Union of Southern California, the American Civil Liberties Union of Northern California, the American Civil Liberties Union of San Diego and Imperial Counties and the American Civil Liberties Union as Amici Curiae on behalf of Real Party in Interest Emily B.

Maxie Rheinheimer Stephens & Vrevich, Darin L. Wessel, Los Angeles; Laura J. Maechtlen, Sacramento; and Vanessa H. Eisemann, Pasadena, for Tom Homann Law Association, Bay Area Lawyers for Individual Freedom, Lesbian and Gay Lawyers Association of Los Angeles, and Sacramento Lawyers for the Equality of Gays and Lesbians as Amici Curiae on behalf of Real Parties in Interest Emily B. and El Dorado County.

Donna Wickham Furth, San Francisco; Wilke, Fleury, Hoffelt, Gould & Birney and William A. Gould, Jr., San Francisco, for Northern California Association of Counsel for Children, National Association of Counsel for Children and The California Psychological Association as Amici Curiae on behalf of Minors.

Geragos & Geragos, Gregory R. Ellis, San Francisco; and Rebekah A. Frye for The Los Angeles County Bar Association, The San Fernando Valley Bar Association and its Family Law Center, The Family Law Section of the Beverly Hills Bar Association, The Bar Association of San Francisco, The Association of Certified Law Specialists and Women Lawyers Association of Los Angeles as Amici Curiae on behalf of Minors.

Morrison & Foerster, Ruth N. Borenstein, San Francisco, and Johnathan E. Mansfield, San Francisco, for California NOW, Inc., and California Women's Law Center as Amici Curiae.

MORENO, J.

We granted review in this case, as well as in K.M. v. E.G. (Aug. 22, 2005, S125643) ___ Cal.4th ___, 33 Cal.Rptr.3d 61, 117 P.3d 673, 2005 WL 2000860, and Kristine H. v. Lisa R. (Aug. 22, 2005, S126945) ___ Cal.4th ___, 33 Cal.Rptr.3d 81, 117 P.3d 690, 2005 WL 2000908 to consider the parental rights and obligations, if any, of a woman with regard to a child born to her partner in a lesbian relationship.

In the present action for child support filed by the El Dorado County District Attorney, we conclude that a woman who agreed to raise children with her lesbian partner, supported her partner's artificial insemination using an anonymous donor, and received the resulting twin children into her home and held them out as her own, is the children's parent under the Uniform Parentage Act and has an obligation to support them.

FACTS

On June 7, 2001, the El Dorado County District Attorney filed a complaint in superior court to establish that Elisa B. is a parent of two-year-old twins Kaia B. and Ry B., who were born to Emily B.,¹ and to order Elisa to pay child support.² Elisa filed an answer in which she denied being the children's parent.

A hearing was held at which Elisa testified that she entered into a lesbian relationship with Emily in 1993. They began living together six months later. Elisa obtained a tattoo that read "Emily, por vida," which in Spanish means Emily, for life. They introduced each other to friends as their "partner," exchanged rings, opened a joint bank account, and believed they were in a committed relationship.

Elisa and Emily discussed having children and decided that they both wished to give birth. Because Elisa earned more than twice as much money as Emily, they decided that Emily "would be the stay-at-home mother" and Elisa "would be the primary breadwinner for the family." At a sperm bank, they chose a donor they both would use so the children would "be biological brothers and sisters."

After several unsuccessful attempts, Elisa became pregnant in February, 1997. Emily was present when Elisa was inseminated. Emily began the insemination process in June of 1997 and became pregnant in August, 1997. Elisa was present when Emily was inseminated and, the next day, Elisa picked up additional sperm at the sperm bank and again inseminated Emily at their home to "make sure she got pregnant." They went to each other's medical appointments during pregnancy and attended child birth classes together so that each could act as a "coach" for the other during birth, including cutting the children's umbilical cords.

Elisa gave birth to Chance in November, 1997, and Emily gave birth to Ry and Kaia prematurely in March, 1998. Ry had medical problems; he suffered from Down's Syndrome, and required heart surgery.

They jointly selected the children's names, joining their surnames with a hyphen to form the children's surname. They each breast fed all of the children. Elisa claimed all three children as her dependents on her tax returns and obtained a life insurance policy on herself naming Emily as the beneficiary so that if "anything happened" to her, all three children would be "cared for." Elisa believed the children would be considered both of their children.

Elisa's parents referred to the twins as their grandchildren and her sister referred to the twins as part of their family and referred to Elisa as their mother. Elisa treated all of the children as hers and told a prospective employer that she had triplets. Elisa and Emily identified themselves as co-parents of Ry at an organization arranging care for his Down's Syndrome.

Elisa supported the household financially. Emily was not working. Emily testified that she would not have become pregnant if Elisa had not promised to support her financially, but Elisa denied that any financial arrangements were discussed before the birth of the children. Elisa later acknowledged in her testimony, however, that Emily "was going to be an at-home mom for maybe a couple of years and then the kids were going to go into day care and she was going to return to work."

They consulted an attorney regarding adopting "each other's child," but never did so. Nor did they register as domestic partners or execute a written agreement concerning the children. Elisa stated she later reconsidered adoption because she had misgivings about Emily adopting Chance.

Elisa and Emily separated in November, 1999. Elisa promised to support Emily and the twins "as much as I possibly could" and initially paid the mortgage payments of approximately $1,500 per month on the house in which Emily and the twins continued to live, as well as other expenses. Emily applied for aid. When they sold the house and Emily and the twins moved into an apartment in November, 2000, Elisa paid Emily $1,000 a month. In early 2001, Elisa stated she lost her position as a full-time employee and told Emily she no longer could support her and the twins. At the time of trial, Elisa was earning $95,000 a year.

The superior court rendered a written decision on July 11, 2002, finding that Elisa and Emily had rejected the option of using a private sperm donor because "[t]hey wanted the child to be raised exclusively by them as a couple." The court further found that they intended to create a child and "acted in all respects as a family," adding "that a person who uses reproductive technology is accountable as a de facto legal parent for the support of that child. Legal parentage is not determined exclusively by biology."

The court further found that Elisa was obligated to support the twins under the doctrine of equitable estoppel, finding Emily "agreed to have children with Respondent, and relied on her promise to raise and support her children. She would not have agreed to impregnation but for this...