K.M. v. E.G.

• Decision Date: 22 August 2005
• Docket Number: No. S125643.,S125643.
• Citation: K.M. v. E.G., 33 Cal.Rptr.3d 61, 37 Cal.4th 130, 117 P.3d 673 (Cal. 2005)
• Court: California Supreme Court
• Parties: K.M., Plaintiff and Appellant, v. E.G., Defendant and Respondent.

33 Cal.Rptr.3d 61

37 Cal.4th 130

117 P.3d 673

K.M., Plaintiff and Appellant, v. E.G., Defendant and Respondent.

No. S125643.

Supreme Court of California.

August 22, 2005.

Hersh Family Law Practice, Jill Hersh, Jenny Wald and Stephanie Wald, San Francisco, for Plaintiff and Appellant.

Shannon Minter, Courtney Joslin, San Francisco; 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 Plaintiff and Appellant.

Debra Back Marley and Robert C. Fellmeth for Children's Advocacy Institute as Amicus Curiae on behalf of Plaintiff and Appellant.

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 Plaintiff and Appellant.

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 Plaintiff and Appellant.

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 Plaintiff and Appellant.

Sideman & Bancroft and Diana E. Richmond, San Francisco, for Defendant and Respondent.

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

Marvin R. Ventrell; Donna Wickham Furth, San Francisco; Wilke, Fleury, Hoffelt, Gould & Birney and William A. Gould, Jr., Sacramento, 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 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 Elisa B. v. Superior Court (Aug. 22, 2005, S125912) ___ Cal.4th ___, 33 Cal.Rptr.3d 46, 117 P.3d 660, 2005 WL 2000864, 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 case, we must decide whether a woman who provided ova to her lesbian partner so that the partner could bear children by means of in vitro fertilization is a parent of those children. For the reasons that follow, we conclude that Family Code section 7613, subdivision (b), which provides that a man is not a father if he provides semen to a physician to inseminate a woman who is not his wife, does not apply when a woman provides her ova to impregnate her partner in a lesbian relationship in order to produce children who will be raised in their joint home. Accordingly, when partners in a lesbian relationship decide to produce children in this manner, both the woman who provides her ova and her partner who bears the children are the children's parents.

FACTS

On March 6, 2001, petitioner K.M.¹ filed a petition to establish a parental relationship with twin five-year-old girls born to respondent E.G., her former lesbian partner. K.M. alleged that she "is the biological parent of the minor children" because "[s]he donated her egg to respondent, the gestational mother of the children." E.G. moved to dismiss the petition on the grounds that, although K.M. and E.G. "were lesbian partners who lived together until this action was filed," K.M. "explicitly donated her ovum under a clear written agreement by which she relinquished any claim to offspring born of her donation."

On April 18, 2001, K.M. filed a motion for custody of and visitation with the twins.

A hearing was held at which E.G. testified that she first considered raising a child before she met K.M., at a time when she did not have a partner. She met K.M. in October, 1992 and they became romantically involved in June 1993. E.G. told K.M. that she planned to adopt a baby as a single mother. E.G. applied for adoption in November, 1993. K.M. and E.G. began living together in March, 1994 and registered as domestic partners in San Francisco.

E.G. visited several fertility clinics in March, 1993 to inquire about artificial insemination and she attempted artificial insemination, without success, on 13 occasions from July, 1993 through November, 1994. K.M. accompanied her to most of these appointments. K.M. testified that she and E.G. planned to raise the child together, while E.G. insisted that, although K.M. was very supportive, E.G. made it clear that her intention was to become "a single parent."

In December, 1994, E.G. consulted with Dr. Mary Martin at the fertility practice of the University of California at San Francisco Medical Center (UCSF). E.G.'s first attempts at in vitro fertilization failed because she was unable to produce sufficient ova. In January, 1995, Dr. Martin suggested using K.M.'s ova. E.G. then asked K.M. to donate her ova, explaining that she would accept the ova only if K.M. "would really be a donor" and E.G. would "be the mother of any child," adding that she would not even consider permitting K.M. to adopt the child "for at least five years until [she] felt the relationship was stable and would endure." E.G. told K.M. that she "had seen too many lesbian relationships end quickly, and [she] did not want to be in a custody battle." E.G. and K.M. agreed they would not tell anyone that K.M. was the ova donor.

K.M. acknowledged that she agreed not to disclose to anyone that she was the ova donor, but insisted that she only agreed to provide her ova because she and E.G. had agreed to raise the child together. K.M. and E.G. selected the sperm donor together. K.M. denied that E.G. had said she wanted to be a single parent and insisted that she would not have donated her ova had she known E.G. intended to be the sole parent.

On March 8, 1995, K.M. signed a four-page form on UCSF letterhead entitled "Consent Form for Ovum Donor (Known)." The form states that K.M. agrees "to have eggs taken from my ovaries, in order that they may be donated to another woman." After explaining the medical procedures involved, the form states on the third page: "It is understood that I waive any right and relinquish any claim to the donated eggs or any pregnancy or offspring that might result from them. I agree that the recipient may regard the donated eggs and any offspring resulting therefrom as her own children." The following appears on page 4 of the form, above K.M.'s signature and the signature of a witness: "I specifically disclaim and waive any right in or any child that may be conceived as a result of the use of any ovum or egg of mine, and I agree not to attempt to discover the identity of the recipient thereof." E.G. signed a form entitled "Consent Form for Ovum Recipient" that stated, in part: "I acknowledge that the child or children produced by the IVF procedure is and shall be my own legitimate child or children and the heir or heirs of my body with all rights and privileges accompanying such status."

E.G. testified she received these two forms in a letter from UCSF dated February 2, 1995, and discussed the consent forms with K.M. during February and March. E.G. stated she would not have accepted K.M.'s ova if K.M. had not signed the consent form, because E.G. wanted to have a child on her own and believed the consent form "protected" her in this regard.

K.M. testified to the contrary that she first saw the ovum donation consent form 10 minutes before she signed it on March 8, 1995. K.M. admitted reading the form, but thought parts of the form were "odd" and did not pertain to her, such as the part stating that the donor promised not to discover the identity of the recipient. She did not intend to relinquish her rights and only signed the form so that "we could have children." Despite having signed the form, K.M. "thought [she] was going to be a parent."

Ova were withdrawn from K.M. on April 11, 1995, and embryos were implanted in E.G. on April 13, 1995. K.M. and E.G. told K. M's father about the resulting pregnancy by announcing that he was going to be a grandfather. The twins were born on December 7, 1995. The twins' birth certificates listed E.G. as their mother and did not reflect a father's name. As they had agreed, neither E.G. nor K.M. told anyone K.M. had donated the ova, including their friends, family and the twins' pediatrician. Soon after the twins were born, E.G....