By KENNETH OFGANG
, Staff Writer/Appellate Courts
Metropolitan News-Enterprise May 12, 2004
A donor of
genetic material is a legal parent of the resulting
child only if that was the parties’ intent at the
time, and extrinsic considerations such as the
nature of the parties’ relationship and the best
interests of the child cannot enter into the
determination, the First District Court of Appeal
has ruled.
Div. Five
affirmed a Marin Superior Court judge’s decision
rejecting the claim of K.M., as she was identified
in the opinion, to be a legal parent of twin girls,
now eight years old. K.M. and the girls’ mother,
E.G., lived together for 21 months before the twins
were born and for more than five years afterward,
but split up in 2001.
The mother and
the children now live in Massachusetts, where they
moved before K.M. filed her parentage action in
2002. K.M.’s attorney told the MetNews she will seek
Supreme Court review of Monday’s ruling, in which
Justice Mark Simons said there was substantial
evidence to support Marin Superior Court Judge
Randolph E. Heubach’s finding that the parties
intended for E.G. to be the sole legal parent.
Under the
California Supreme Court surrogacy case,
Johnson v. Calvert
(1993) 5 Cal.4th 84, Simons added, it is the
parties’ intention at the time of conception that
controls.
Johnson
involved a couple who retained a surrogate to give
birth to their child.
The couple and
the surrogate entered into a written agreement in
which the surrogate disclaimed any parental rights.
An embryo created from the couple’s gametes was
implanted in the surrogate, who gave birth and
subsequently changed her mind about giving up
parenthood.
The surrogate
sued to determine parentage under the Uniform
Parentage Act. The high court ruled that the couple
were the child’s sole parents because that is what
the parties intended.
Although K.M. and
E.G. had no written agreement, Simons said, there
was a good deal of evidence, albeit disputed,
indicating that E.G. had no intention of giving
birth to a child that would have another legal
parent and that K.M. understood that.
The justice cited
evidence that E.G. had been exploring parenthood
before she became involved with K.M., and had made
numerous attempts at getting pregnant without her
partner’s genetic material, even after the couple
registered as domestic partners.
It was only after
12 failed attempts at artificial insemination at
fertility clinics, the evidence showed, that E.G.
went to a fertility practice at UC San Francisco
Medical Center. There she attempted in vitro
fertilization using her own eggs and donated sperm,
but the efforts failed because she was unable to
produce enough eggs.
It was a UCSF
doctor who suggested that her partner might be an
egg donor, according to testimony.
E.G. said she was
hesitant to agree because the couple had been
together only a short time and she did not want to
risk a future custody battle. E.G. testified that
she eventually agreed to the donation, but only
after K.M. agreed that she would be a “real donor”
and would not claim parental rights.
The pair
discussed the possibility of a future adoption, but
E.G. said she told her partner she would only
consider adoption after about five years because she
wanted an assurance of the stability of the
relationship.
In concluding
that the parties did not intend a two-parent family,
the trial judge gave significant weight to a form
K.M. signed at the time of the donation.
The form included
the following statements:
•“It
is understood that I waive any right and relinquish
any claim to the donated eggs or any pregnancy or
offspring that might result from them. I agree that
the recipient may regard the donated eggs and any
offspring resulting therefrom as her own children;”
and
•“I
specifically disclaim and waive any rights in or
[to] any child that may be conceived as a result of
the use of any ovum or egg of mine, and I agree not
to attempt to discover the identity of the recipient
thereof.
“I waive the
right of relationship or inheritance with respect to
any child born of this procedure.”
K.M., who wants
joint custody, admitted signing the form but denied
having gone over it with E.G. in advance. She said
she was given the form at UCSF and signed it within
minutes, believing it was pro forma and that it had
nothing to do with determining legal rights as a
parent.
But Simons noted
that K.M. has a master’s degree and conceded that
she understood the language of the form, and that
she made no attempt to alter the language. And the
appellate court, he said, was bound by the trial
judge’s findings that K.M. signed the form knowingly
and voluntarily, and that her testimony regarding
her understanding of the form’s effect was
“contradictory and not always credible.”
Simons agreed
with the plaintiff and disagreed with the trial
judge on one point, concluding that the genetic
relationship between K.M. and the child makes her an
“interested person” with standing to bring an action
under the UPA. Her situation differs, the justice
said, from those of birth mothers’ lesbian partners
who have no genetic connection to the children, and
who have been held to lack standing under the UPA
and to have no parental rights absent an adoption.
But the trial
judge’s ruling on the merits, after a seven-day
trial, was sound, the justice said, rejecting the
plaintiff’s argument that the parties’ actions after
the children were born showed an intent to form a
two-parent family.
“The parties’
pre-conception intention that E.G. would be the sole
legal parent until adoption impliedly contemplated
that the parties would remain together as a couple
and that the children and others might regard K.M.
as a second parent,” the justice reasoned. “E.G.’s
acceptance of K.M. as a joint parental figure in the
children’s lives was consistent with the parties’
initial intentions and provides no basis for a
finding of repudiation of those intentions.”
In any event, the
justice said, had the parties changed their minds
and agreed on joint parenthood, they could have
provided for it through adoption.
K.M.’s attorney,
Jill Hersh of San Francisco, said her client was
“very sad” and would “certainly” take the case to
the state’s highest court.
Hersh disputed
the court’s analysis of both the facts and the law.
The ruling, she said, disregarded “a very large body
of undisputed evidence of intent.” The two women,
she said, in fact created “a family in which the
children believe that they have two mothers.”
Diana Richmond of
San Francisco, E.G.’s attorney, said she was
“thrilled at my client’s complete vindication on the
law and the facts.” The decision in the “highly
unusual” case, she said, is “evenhanded and fair”
and will allow same-sex couples to make their own
choices as to how to handle the question of
parenthood
The case is
K.M. v. E.G.,
04 S.O.S. 2319.
