California Justices
Rule in Favor
of Same-Sex Parental
Rights
By ADAM LIPTAK,
NYTimes on the Web, August 22, 2005
The California Supreme Court ruled
today that women whose lesbian partners bear children are both entitled and
required to be treated as the children's mothers in many circumstances.
"We perceive no reason," the court ruled, "why both parents of a child cannot be
women."
The court issued decisions in three cases, ruling that the lesbian partner had
parental rights or obligations in all three. The cases involved a request
for child support, a petition to establish parental rights and a request to
alter a birth certificate on which two women were listed as parents.
The cases all involved unorthodox conceptions, and the court struggled to apply
state laws concerning heterosexual relationships to them.
"While scientific advances in reproductive technology now afford individual
previously unimagined opportunities to become parents," wrote a dissenting
justice, Kathryn M. Werdegar, "the same advances have also created novel,
sometimes heartbreaking issues concerning the identification of the resulting
children's legal parents."
The decisions broke new ground, advocates on both sides agreed.
"It is unprecedented around the country," said Joan Heifetz Hollinger, who
teaches adoption law at the University of California, Berkeley, and submitted
supporting briefs on behalf of the children involved, "to have a state's highest
court recognize that in the absence of an adoption and even in the absence of in
some instances of a domestic partnership agreement, that two men or two women
could be the full legal parents of a child born through assisted reproduction."
But the rulings troubled lawyers for conservative groups.
"You've essentially begun to undermine and unravel the family," said Mathew D.
Staver of Liberty Counsel, which submitted supporting briefs arguing against
recognition of two same-sex parents.
The decision may also have implications for the recognition of same-sex marriage
in California. That question is before a state appeals court and is
expected to reach the State Supreme Court after the appeals court decides.
"If these cases are any indication," Mr. Staver said, "it makes it look like
they're tending toward recognition of gay marriage."
Courts in about half the states have allowed members of same-sex couples to
adopt their partners' children, said Courtney Joslin, a staff lawyer with the
National Center for Lesbian Rights. Today's decisions involved the
separate question of the legal rights of former members of lesbian couples who
had broken up after using assisted reproductive techniques to bear children.
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Jim
Wilson/The New York Times
A woman identified
as K.M., center, who sued to establish her parental rights celebrated with
members of her legal team after the court's decision. |
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The only one of the three decisions that provoked dissents, and the only one
that seemed to leave open the possibility of an appeal to the United States
Supreme Court, involved a woman identified as K.M., who had provided an egg that
her lesbian partner used, with donated sperm, to give birth to twin girls. K.M.
had signed a form relinquishing her claims to the child at the time of the
donation but, after the couple broke up, filed a lawsuit to establish her
parental rights.
The supreme court, in a 4-to-2 decision, ruled for K.M. Justice Werdegar,
dissenting, suggested that the ruling, which treated the donation of sperm
differently from the donation of an egg, "inappropriately confers rights and
imposes disabilities on persons because of their sexual orientation" and so "may
well violate equal protection."
The United States Supreme Court does not hear cases considering questions of
pure state law. But it could hear a claim under the federal Constitution's
equal protection clause.
Diana Richmond, who represented the defendant in the suit, said her client,
known as E.G., has not yet decided whether file such an appeal. E.G. declined a
request for an interview through Ms. Richmond.
K.M., who declined to give her full name "to protect the privacy of my
children," said she welcomed the decision.
"Next to the day my daughters were born," she said, "this is the happiest day of
my life."
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