Family Law Prof Blog

Editor: Margaret Ryznar
Indiana University
Robert H. McKinney School of Law

Tuesday, August 23, 2005

Case Law Developments: Parental Rights of Same-Sex Parents

K.M. v. E.G., 2005 Cal. LEXIS 9066 (2005)

Five years ago, K.M donated her ova to her lesbian partner E.G. after E.G. had tried for over a year to conceive a child through artificial insemination.  E.G. then gave birth to twins.  K.M. signed the hospital's standard ova donation consent form, which included a provision disclaiming any parental status toward the children born from the donated eggs.  However, after the couple separated, K.M. filed a petition to declare her a parent of the five-year-old girls, so as to obtain custody or visitation.

Both the trial and appellate courts held that K.M. had waived her rights by signing the consent form.  They analogized her position to that of a sperm donor who, under the California Family Code, has no parental rights or responsibilities toward children resulting from their donation. 

Justice Carlos Moreno, writing for the 4-2 majority of the California Supreme Court, disagreed.  Analogizing to other cases in which a sperm donor was held to be a father because of his relationship to the mother and the child, the court held that, because K.M. and E.G. were living together, were registered domestic partners,  and intended to raise the children in their home together, the statutory waiver did not apply.

The court then analyzed the case under the terms of the Uniform Parentage Act standard of “evidence of a parent-child relationship” and found that there was sufficient evidence of K.M.’s relationship to the children to establish parentage.  The court considered K.M.’s genetic relationship with the children, the fact that they were being raised jointly with E.G. in their home, and testimony from teachers, caregivers, and friends regarding K.M.’s relationship to the girls. The court held that the hospital consent form's waiver was not relevant because, under the UPA, a parent may not waive his or her status by agreement prior to conception. 

Distinguishing case law that had looked to the parties' intent regarding the children, the court noted that those cases involved situations in which three people claimed parentage (a husband and wife and a surrogate mother).  An intent test was necessary in those cases because a child can only have two parents under California law.  Here, the court noted, the court was not presented with choosing between mutually exclusive mothers, but merely with the question of parentage, for which the standard UPA analysis was appropriate.

Justice Joyce Kennard dissented, arguing that the court should apply the sperm donor statute to exclude K.M.’s from parentage. 

Justice Kathryn Werdegar’s dissent argued that the “intent test” should apply and that K.M. had not established her intent to be a parent.  Justice Werdegar noted that K.M. could have designated herself as an “intended parent” in executing the ova donation agreement and that, while the girls were raised in K.M. and E.G.’s home, the women had kept K.M.’s biological connection to the children a secret. 

Text of opinion on web at

The California Supreme Court decided two other cases involving parental rights of lesbian mothers today as well. 

Elisa B. v. Sup. Ct., 2005 Cal. LEXIS 9065 (2005)

Elisa and her partner Emily were each artificially inseminated from the same sperm donor and each had children at the same time.  Elisa had one child and Emily had twins.  Emily stayed home with the children and Elisa, who earned more, supported the family financially.  After the couple separated, Elisa continued to provide financial support for the twins, but when her job situation changed, she told Emily that she would no longer pay support.  Emily sued and the court ordered support be paid.  The appellate court reversed.  The Supreme Court granted the writ to review the appellate court’s decision.

The Supreme Court court unanimously agreed that Elisa was the parent of the twins born to her partner and had a responsibility to pay child support.  The partners had agreed that they were both parents of all three children and conducted themselves in a manner consistent with that agreement.  The court noted that California, by virtue of allowing second parent adoptions, had previously decided that a child may have two parents of the same sex. The court then applied the UPA standard for a presumed father, finding that Elisa had received the children into her home and had openly held herself out as their parent. 

Text of opinion on the web at

Kristine H. v. Lisa R., 2005 Cal. LEXIS 9064 (2005)

Here too, the couple involved had expressed a clear intent that they both be parents.  When Kristine was pregnant, she and her partner Lisa filed suit and obtained a stipulated judgment declaring that they were both “the joint intended legal parents” of the unborn child so that the hospital would allow Lisa’s name to be included on the birth certificate.  After raising the child together for two years, the couple separated.  Kristine then filed an action requesting that the stipulated judgment be set aside, arguing that the court had lacked subject matter jurisdiction because the child was not yet born. 

The trial court denied Kristine’s motion to vacate the judgment, rejecting the subject matter jurisdiction argument.  The Court of Appeal reversed on a different ground, concluding that the judgment was void because it was based upon a stipulation of the parties and remanded for a finding of parentage under the UPA.  The Supreme Court of California reversed, holding that it need not decide the validity of the judgment because Kristine was estopped from challenging the validity of that judgment.  The court reviewed the many different circumstances in which estoppel had been applied in actions involving parental rights and duties and concluded that Kristine’s actions fell squarely within the requirements for estoppel.

Text of opinion on the web at


Paternity | Permalink

TrackBack URL for this entry:

Listed below are links to weblogs that reference Case Law Developments: Parental Rights of Same-Sex Parents: