Km v. Eg
117 P.3d 673, 33 Cal. Rptr. 3d 61, 37 Cal. 4th 130 (2005)
Rule of Law:
Family Code section 7613, subdivision (b), which typically precludes a sperm donor from being a legal father, does not apply when a woman provides her ova to impregnate her lesbian partner with the intent to raise the resulting children in their joint home, thereby establishing both women as legal parents under the Uniform Parentage Act.
Facts:
- K.M. and E.G. met in October 1992, became romantically involved in June 1993, and began living together in March 1994, registering as domestic partners in San Francisco.
- E.G. desired to have a child and underwent unsuccessful attempts at artificial insemination between July 1993 and November 1994.
- In January 1995, E.G.'s doctor suggested using K.M.'s ova for in vitro fertilization.
- E.G. asked K.M. to donate her ova, stating that she would accept only if K.M. would "really be a donor" and E.G. would be the sole mother, not considering K.M. for adoption for at least five years.
- On March 8, 1995, K.M. signed a "Consent Form for Ovum Donor (Known)" which stated she waived any right and relinquished any claim to the donated eggs or resulting offspring.
- E.G. signed a "Consent Form for Ovum Recipient" acknowledging that any children produced would be her own legitimate children.
- Ova were withdrawn from K.M. on April 11, 1995, and embryos were implanted in E.G. on April 13, 1995, resulting in the birth of twin girls on December 7, 1995.
- K.M. and E.G. raised the twins together for five years, but their relationship ended in March 2001, and E.G. moved with the twins to Massachusetts in September 2001.
Procedural Posture:
- On March 6, 2001, K.M. filed a petition in superior court to establish a parental relationship with the twin girls.
- E.G. moved to dismiss the petition, arguing K.M. explicitly donated her ovum under a written agreement relinquishing claims to offspring.
- The superior court granted E.G.'s motion to dismiss, finding K.M. knowingly and voluntarily executed the ovum donor form, relinquishing rights, and that K.M.'s position was analogous to a sperm donor under Family Code section 7613(b). The court also found K.M. failed to establish presumed parenthood under section 7611(d).
- K.M. appealed the superior court's judgment.
- The Court of Appeal affirmed the superior court's judgment, ruling K.M. did not qualify as a parent because substantial evidence supported the finding that only E.G. intended to raise the child, and K.M.'s status was consistent with a sperm donor.
- The California Supreme Court granted review.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does Family Code section 7613(b), which bars a sperm donor from legal paternity, apply by analogy to preclude a woman who provides her ova to her lesbian partner for in vitro fertilization from being a legal parent, even if she signed a waiver, if the couple intended to raise the children in their joint home?
Opinions:
Majority - Justice Moreno
No, Family Code section 7613(b) does not apply to preclude K.M. from being a legal parent, and both K.M. and E.G. are the children's parents. K.M.'s genetic relationship to the children constitutes "evidence of a mother and child relationship" under the Uniform Parentage Act (UPA), similar to genetic paternity established in Johnson v. Calvert. The court concluded that Family Code section 7613(b) (the sperm donor statute) does not apply because K.M. provided her ova to her lesbian partner, E.G., with whom she was living, to produce a child intended to be raised in their joint home. This scenario is distinct from a "true 'egg donation' situation" where the donor fully relinquishes parental intent. The legislative history of § 7613(b) indicates it was expanded to protect unmarried women using artificial insemination but not to negate parentage for a man providing semen to his unmarried partner with whom he intends to raise the child. The Johnson v. Calvert "intent test" is inapplicable here because the issue in Johnson was to decide between two mutually exclusive maternal claims (genetic mother vs. gestational surrogate); in this case, a child can have two mothers, and K.M. claims parentage in addition to, not instead of, E.G. Furthermore, a waiver form, such as the one K.M. signed, does not affect the determination of parentage, as Family Code section 7632 provides that agreements between alleged parents and the mother or child do not bar a parentage action. Parents cannot waive their responsibility to support a child or relinquish parental rights through a pre-conception agreement. Therefore, both E.G. (as birth mother) and K.M. (as genetic mother) are mothers of the twins under the UPA.
Dissenting - Justice Kennard
Yes, K.M. is not a parent of the twins because she donated her ova under a clear agreement to relinquish parental claims, making her status analogous to a sperm donor under Family Code section 7613(b). Family Code section 7650 states that provisions for father-child relationships apply to mother-child relationships "insofar as practical." It is practical and consistent with the trial court's factual finding that K.M. intended "to donate ova to E.G." for E.G. to be the sole parent, to treat an ova donor similarly to a sperm donor under § 7613(b). The trial court found K.M. voluntarily relinquished her claims, and her testimony about misunderstanding the form was "not always credible." The Johnson v. Calvert court previously signaled that an ova donor would not be treated as the child's mother in a "true `egg donation' situation." The majority's decision rewrites § 7613(b) by inserting an exception for joint intent to raise a child, which is not supported by the statutory language or its history, and destabilizes procreative choices made in reliance on prior interpretations of the law.
Dissenting - Justice Werdegar
No, K.M. is not a mother of the twins because under the established "intent test" from Johnson v. Calvert, the trial court found that K.M. did not intend to become a parent. While a child can have two mothers, the principle of predictability in assisted reproduction demands adhering to the intent test to determine parentage. The trial court's finding, supported by substantial evidence (K.M.'s oral and written representations), indicated K.M. did not intend to become a parent. The majority's action of displacing the Johnson intent test and creating a new rule based on a post-conception judicial determination of intent (to raise children in a joint home) is problematic. This new rule inappropriately confers rights based on sexual orientation (lesbian couple), injects a "best interests" factor into parentage determination, and threatens to destabilize existing ovum donation and gestational surrogacy agreements. The majority's extensive discussion of Family Code section 7613, subdivision (b) is irrelevant because that statute was not intended to govern ovum donations, especially given its drafting predating common assisted reproduction. Its inapplicability does not automatically establish K.M.'s parentage; the Johnson intent test should still be applied.
Analysis:
This case significantly redefines parental rights in California for same-sex couples using assisted reproductive technology. It broadens the interpretation of "parent" under the Uniform Parentage Act to include both genetic and gestational mothers in a lesbian relationship, moving away from the strict "one natural mother" principle and the intent test established in Johnson v. Calvert for surrogacy cases where claims were mutually exclusive. The ruling prioritizes the genetic link and the shared intent to raise a child within a committed relationship over contractual waivers, offering greater protection for non-gestational, genetic parents in such arrangements. It sets a precedent for how courts may approach parentage in evolving family structures and assisted reproductive technologies, emphasizing the importance of securing parental ties for children born into modern families.
