Km v. Eg
33 Cal. Rptr. 3d 61, 37 Cal. 4th 130, 117 P.3d 673 (2005)
Rule of Law:
When partners in a lesbian relationship decide to produce children through in vitro fertilization using one partner's ova and the other partner's gestation, both women are considered legal parents of the children under the Uniform Parentage Act, and Family Code section 7613, subdivision (b) (the semen donor rule) does not apply to preclude the genetic mother's parentage, even if a waiver form was signed.
Facts:
- K.M. and E.G. met in October 1992, became romantically involved in June 1993, began living together in March 1994, and registered as domestic partners.
- E.G. expressed a desire to have a child and attempted artificial insemination multiple times without success.
- In January 1995, E.G.'s fertility doctor suggested using K.M.'s ova for in vitro fertilization.
- E.G. asked K.M. to donate her ova, stating she would only accept if K.M. would be a donor and E.G. would be the sole mother, with K.M. not considering adoption for at least five years; K.M. maintained she only agreed to donate ova because they would raise the children together.
- On March 8, 1995, K.M. signed a "Consent Form for Ovum Donor (Known)" stating she waived and relinquished any claim to the donated eggs or resulting offspring; E.G. signed a form acknowledging the children as her own.
- Ova were withdrawn from K.M. and embryos were implanted in E.G., resulting in the birth of twin girls on December 7, 1995.
- K.M. and E.G. raised the twins together in their shared home for five years, but kept K.M.'s genetic connection a secret from friends, family, and the twins' pediatrician.
- The relationship between K.M. and E.G. ended in March 2001, and E.G. moved with the twins to Massachusetts in September 2001.
Procedural Posture:
- K.M. filed a petition in superior court to establish a parental relationship with the twin girls born to her former lesbian partner, E.G., and sought custody and visitation.
- E.G. moved to dismiss K.M.'s 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, voluntarily, and intelligently executed the ovum donor form, relinquishing parental rights, and did not meet the criteria for a 'presumed parent' under Family Code section 7611, subdivision (d).
- K.M. appealed the superior court's judgment to the Court of Appeal.
- The Court of Appeal affirmed the judgment, ruling that K.M. did not qualify as a parent because substantial evidence supported the trial court's finding that only E.G. intended to be the sole parent, and K.M.'s status was consistent with a sperm donor.
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Issue:
Does 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, apply when a woman provides her ova to impregnate her lesbian partner to produce children who will be raised in their joint home, thereby precluding the genetic mother from being a legal parent?
Opinions:
Majority - Moreno, J.
No, Family Code section 7613, subdivision (b) does not apply to preclude K.M.'s parentage; both K.M. and E.G. are the children's parents. The Uniform Parentage Act (UPA) establishes that the parent and child relationship extends equally to every child and parent regardless of marital status. Under Johnson v. Calvert, genetic consanguinity can be the basis for a finding of maternity, and K.M.'s genetic relationship to the twins constitutes evidence of a mother and child relationship under the UPA. Section 7613(b), which exempts semen donors, is not applicable in this case because K.M. provided her ova to her lesbian partner with whom she was living, with the clear intent that the children would be raised in their joint home. This is not a "true egg donation" situation where the donor has no intent to parent. The legislative history of the UPA's sperm donor provision, which was expanded to allow unmarried women to use artificial insemination without the donor claiming paternity, did not intend to preclude parentage for partners who intend to co-parent. The Johnson v. Calvert "intent test," which determines which of two women with mutually exclusive claims (gestational vs. genetic) is the sole mother, is not applicable here because K.M. seeks to be a mother in addition to E.G., not instead of her, and a child can have two mothers. Furthermore, K.M.'s signed waiver relinquishing parental rights is ineffective under Family Code section 7632, which states that agreements between parents do not bar parentage actions or waive parental responsibilities.
Dissenting - Kennard, J.
Yes, K.M. is not a parent of the twins, because the sperm donor statute should apply by analogy. Family Code section 7650 states that provisions applicable to father-child relationships are to be used for mother-child relationships "insofar as practicable." It is practicable to treat a woman who donates ova for in vitro fertilization to another woman, through a physician, the same way a man who donates sperm to an unmarried woman through a physician is treated—as if he were not the natural father. The trial court specifically found that K.M. knowingly and voluntarily signed the donor form, indicating her intent not to be a parent, and that E.G. intended to be the sole parent. This aligns with the suggestion in Johnson v. Calvert that in a "true egg donation" situation, the birth mother is the natural mother and the genetic donor is not. The majority's decision disregards the intentions expressed by the parties at the time of conception and rewrites the sperm-donor statute by adding a new provision about the intent to raise children in a joint home, which is not supported by statutory language or history. This approach creates unpredictability and may negatively affect procreative choices made in reliance on prior law.
Dissenting - Werdegar, J.
Yes, K.M. is not a parent because applying the established Johnson v. Calvert intent test leads to that conclusion. While agreeing that a child can have two mothers, the critical factor in cases of assisted reproduction should be the parties' clear preconception intent, which provides necessary predictability. The trial court found, based on substantial evidence, that K.M. did not intend to become a parent, and this finding should be respected. The majority errs by abandoning Johnson's intent test for this case and creating a new rule that makes parentage depend on intent to raise children in a joint home, regardless of expressed intent to donate. This new rule inappropriately links parentage to sexual orientation, as it specifically refers to "lesbian partner" multiple times and implies limitations to lesbian domestic partners, which could violate equal protection. Furthermore, basing parentage on the intent to 'raise' a child, rather than the intent to 'be a parent,' improperly injects 'best interests' factors into the determination of natural parentage and destabilizes agreements. The Family Code section 7613, subdivision (b) sperm donation statute is irrelevant to this case, as it was not designed for ovum donations or to establish parentage, only to exclude it.
Analysis:
This case significantly redefines the concept of parentage for same-sex couples using assisted reproduction in California, moving beyond a strict biological or gestational determinant to consider the relationship context and intent to co-parent. By limiting the application of the sperm donor statute to true donor situations and clarifying that the "one natural mother" premise from Johnson v. Calvert does not apply when two women both seek parentage, the court acknowledges and validates co-parenting relationships for genetic mothers in lesbian partnerships. The ruling clarifies that agreements purporting to waive parental rights in such scenarios are ineffective, prioritizing the child's right to two parents and the intent to co-parent within an existing relationship over formal documentation of relinquishment. This decision has broad implications for family law, potentially influencing how other states interpret parental rights in similar assisted reproduction cases involving same-sex partners, promoting legal equality and stability for LGBTQ+ families.
