Take the seemingly simple question: Who is a child's mother? Then stir up that question with surrogates, egg and sperm donors, artificial insemination and same-gender couples, add the California Supreme Court and see what happens.
Back in 1994 the California high court, undeniably a player in the culture wars, held that a child could have only one natural mother. That case involved a surrogate mother competing for the title with a wife whose egg was fertilized in vitro by her husband's sperm and implanted into the surrogate. After the birth of the child, both the wife and the surrogate claimed to be the child's mother. Each had an argument to make under California's version of the Uniform Parentage Act, a model statute that establishes how to determine parentage of a child.
Originally, the act's purpose was to eliminate the legal distinctions between legitimate and illegitimate children. Recent amendments deal with more complicated parentage issues arising from assisted reproduction. The act takes a gender neutral approach to parenting. The act provides that, in determining the existence of a mother/child relationship, provisions of the father/child relationship should apply insofar as possible.
In the surrogacy case, both women qualified as the mother under the Uniform Parentage Act. The wife provided the genetic material for the child. The surrogate gave birth to the child. The court broke the tie by looking at the intent of the parties and decided the woman who gave the genetic material and intended, with her husband, to raise the child as their own in their home was the mother. But in that case, the court rejected the argument that a child could have three parents — a father and two mothers.
Well, if two parents are the right number, can they both be women? Absolutely yes, said the California high court in two recent decisions that I would argue are utterly conservative — just to prove my oft-stated disdain for judicial labels. Both of these California Supreme Court cases involved lesbians who conceived children with assisted reproductive technology while they were couples but later split up.
In the first case, E.G. — the court uses initials to protect the confidentiality of the minor children — wanted to raise a child even before she had a partner. She had originally planned to adopt a baby as a single mother. Instead, she met K.M., and they eventually lived together as registered domestic partners. E.G., still wanting a child, tried artificial insemination on many occasions without success. K.M. offered to be the egg donor, and E.G. agreed, but only on the condition that K.M.'s role would be kept secret and only E.G. would be the mother.
K.M. agreed to this arrangement and even signed a donor form, waiving any rights to the child to be born with her egg. E.G. gave birth to twins. E.G. named the twins as beneficiaries of various benefits. K.M. did not do the same. But K.M. treated the children as her own, and they fully bonded to her. When the twins were 5 years old, the couple split up. K.M. went to court seeking to be adjudicated a parent of the twins.
The California Supreme Court majority found that K.M.'s claim to be the twins' mother because the twins came from her ova was equal to E.G.'s claim to be the mother because she gave birth to them. The court found that K.M. did more than just supply her ova to impregnate her partner. She made this donation so that the couple could raise the children together in their joint home. K.M. wasn't trying to oust E.G. as the twins' mom, just to join her as co-mom.
The majority held that both E.G. and K.M. were the mothers of the twins, regardless of any waivers K.M. signed. Two justices dissented, finding the parties' original intent that E.G. be the sole parent should be determinative.
The other case was unanimous. Elisa B and Emily entered into a committed relationship and held themselves out as partners. They decided they both wanted to give birth. Each was artificially inseminated with the same anonymous sperm donor, so their children would be biologically related. Elisa had a son, and Emily had boy/girl twins. Emily's son was born with Down syndrome. The couple gave all three children their hyphenated surnames, and both treated all three children as their own. By agreement, Elisa worked to support the family, while Emily stayed home.
Two years later, the women split up. Elisa stopped supporting the twins. As a result, Emily and the twins went on welfare. The county went to court to establish Elisa as the mother of the twins and to order her to pay child support. Elisa argued she could not be considered a parent under the Uniform Parentage Act because she had not given birth to the twins. The high court disagreed, borrowing from a paternity section of the act that presumes a man will be the natural father of a child if he "receives the child into his home and openly holds out the child as his natural child."
Because Elisa received the twins into her home and openly held them out as her natural children, she was presumed to be their mother. The court noted that, just because it had previously held in the surrogacy situation that a child could have only one natural mother, didn't mean that a child couldn't have two parents, both of whom are women.
All of us can take two messages from what the court said in these cases.
"By recognizing the value of determining paternity, the legislature implicitly recognized the value of having two parents, rather than one, as a source of both emotional and financial support, especially when the obligation to support the child would otherwise fall to the public," the majority opinion said.
And from one of the friend-of-the-court briefs, cited with approval by the court: "A person who actively participates in bringing children into her home and holds them out as her own and receives and enjoys the benefits of parenthood should be responsible for the support of those children — regardless of her gender or sexual orientation."
What could be more conservative?
Marianna Brown Bettman, a former Ohio appeals court judge, teaches at the University of Cincinnati College of Law.