Kids in legal gray area when gay couples split
By Richard Willing, USA TODAY Tue Jun 21, 7:19 AM ET
Two women in El Dorado County, Calif., Elisa Maria B. and her domestic partner Emily B., decided they wanted a family.
So when Emily became pregnant by means of a sperm donor and gave birth to twins in 1998, the lesbian couple faced a lifestyle choice. Emily, the couple decided, would stay home with the kids, one of whom had Down syndrome and required constant care. Elisa would be the breadwinner.
Court papers omit the women's last names as standard procedure to protect minors in cases about parenthood.
The couple split up 18 months later. Elisa cut off financial support, prompting Emily and her children to go on welfare. El Dorado County sued Elisa for child support, and she refused to pay. Her argument: I'm not the children's father.
Sometime this summer, the California Supreme Court will rule on the case of Elisa and Emily and two similar appeals. At issue: In same-sex relationships, what makes a person a parent? Is it biology, existing legal standards or whether that person acts like a parent?
If Elisa and Emily had been an unmarried heterosexual couple, their dispute probably would have been resolved already. In California and other states, courts look at how such couples define their relationship to determine parentage.
In California and elsewhere, unmarried same-sex couples that split up have begun asking courts to treat them like heterosexuals in matters of child custody.
Wide potential impact
Family law professor Ed Stein of Cardozo Law School in New York City says the three cases are especially important because courts in other states are likely to be guided by California's example.
The cases come as assisted-reproduction technology becomes more readily available to same-sex couples.
The 2000 Census found about 92,000 same-sex couples in California. As of December, though, only 29,000 had registered under a state law that permits same-sex couples to enjoy most legal rights available to heterosexual couples. The law does not address the parental rights issues raised by these cases.
And the use of assisted-reproduction technology, including donated sperm, in vitro fertilization and donated fertilized eggs, is rapidly increasing. The federal Centers for Disease Control and Prevention reports that 45,751 babies were born through assisted reproduction in 2002 - a 120% increase from the 20,840 in 1996.
Similar legal cases are working their way through the courts in Utah, Georgia and Washington state. In Colorado last year, a state appellate court granted visitation to the former partner of a lesbian who had adopted a baby from China. Courts in New York, Vermont and Pennsylvania have ruled that both partners of same-sex couples who split may be considered parents.
"Reproductive technology is running so far ahead of law and policy," says Emily Doskow, a Berkeley, Calif., attorney who is editor of A Legal Guide for Lesbian and Gay Couples. The California cases, she says, are a sign "the law is trying to keep up."
Variations in cases
The California cases, which were argued May 24 before the state Supreme Court in San Francisco, differ in their details:
"¢ In the case of Elisa B. and Emily B., a trial court agreed that Elisa is not the twins' legal father and has no child-support obligations. A state appeals court reversed that decision and said that Elisa should be granted visitation rights as well as be compelled to help support the children.
At the California Supreme Court, Elisa's attorneys cited state law and an earlier appeals court decision involving heterosexual couples to argue that a non-biological partner cannot be considered a parent.
In legal papers, Emily's lawyers pointed out that the couple had named the children as beneficiaries on life insurance policies and had even shared breast-feeding duties. Acting like a parent, they argued, creates parental rights and duties.
"¢ In K.M. v. E.G., a case from Marin County, north of San Francisco, a fertilized egg from K.M. was implanted in E.G., who had twins in 1996. When the couple broke up in 2002, E.G. denied K.M. access to the children. She cited a waiver of parental rights K.M. signed when she donated her egg.
Relying on the waiver, two lower courts held that K.M. is not a legal parent. At the state Supreme Court, K.M.'s lawyers argued that how the couple lived - both functioning as parents - should trump the waiver. To decide otherwise, K.M.'s lawyer Jill Hersh wrote, would harm the children.
"¢ In Kristine H. v. Lisa R., a Los Angeles case, one partner in an eight-year relationship had a daughter through artificial insemination. Before the girl was born, the birth mother, Kristine, sought and received a court judgment that Lisa was the legal father and that both partners were the parents.
About 21/2 years after the child was born, the couple separated. Kristine asked the court to void the judgment and rule that Lisa had no visitation rights. An appeals court agreed with her. At the state Supreme Court, Kristine's attorney, Honey Kessler Amado, argued that she never intended to grant her then-partner full paternity rights.
Lisa's attorneys, Leslie Shear and Diane Goodman, countered that the court judgment and Lisa's subsequent behavior as a parent entitled her to visitation.
Adoption not involved
None of the couples in these cases had adopted the children. Courtney Joslin, the lawyer for Emily B., says in all three cases, the children's "birth into the world came about because of the intentional conduct of two people" - the partners. "That's what we think is most important here," says Joslin, a senior staff attorney for the National Center for Lesbian Rights.
Stein, of Cardozo Law School, says that argument has a good chance of succeeding.
During oral arguments before the state Supreme Court, Stein says, some justices seemed convinced that "fairness" requires them to extend parental rights to gay, non-biological partners. Other justices, Stein says, seemed to believe that extending parental rights strengthens families and better protects children.
"The (legal principle) here is that the reality of a relationship is determined by its functionality," Stein says. "That's a direction in which the law, generally speaking, is headed."
Thats not that long ago.
