Tuesday, August 23, 2005

K.M. v. E.G. (Cal. Supreme Ct. - Aug. 22, 2005)

A trio of California Supreme Court decisions issued today about lesbian couples and children, all of which are interesting and each of which will undoubtedly attract much press. For the record, I agree with two of them and tentatively disagree with the third. (Also for the record: the cases were actually decided yesterday, and while I started the post then, I didn't finish it for today. Slacker, I know.)

The first of the Court's opinions is Elisa B. v. Superior Court, which holds that a lesbian partner can have parental obligations -- and hence be liable for child support -- even if she is biologically unrelated to the child. (You'll note that at the very top of the Supreme Court's opinion, the Court instructs the reporter to issue the decisions in a particular sequence, with Elisa B. as the first. Interesting.) This one is unanimous, even though Justice Kennard authors a separate concurring opinion. And, perhaps indicative of my status as a Californian, I agree with it. When, as here, two partners deliberately and intelligently decide to have a child together, and elect (as here) to raise that child jointly and as a family, you're a family, at least in my view. Which means that each parent has corresponding rights and responsibilities. Regardless of whether the parent is biologically related to the child or not. I don't have a problem with that at all; indeed, that's the way it should be. So I'm on board for this one.

The third of the Court's opinions is Kristine H. v. Lisa R., which holds that when a lesbian couple deliberately enters into a stipulated judgment that's approved by a court that concludes that each partner is the parent of the child, the parties are estopped to later attack the validity of that judgment. I'm on board for this one as well, for approximately the same reason. When one deliberately undertakes to be the parent of a child, one is bound to that decision. Particularly when it's enshrined in a judgment. Admittedly, I don't think that this decision is perfect; for example, the California Supreme Court fails to express any opinion regarding whether the stipulated judgment here was properly entered into, which means that parties who attempt this route may well be frustrated by a recalcitrant lower court that refuses -- sua sponte -- to enter the stipulated judgment. But I agree that if they somehow get the lower court to approve, the parties are bound. And, like the decision in Elisa B., the California Supreme Court is unanimous on this one.

Perhaps not surprisingly, the decision as to which I'm much less comfortable -- and probably disagree -- is the one that was not unanimous: K.M. v. E.G. This opinion holds that a woman who donates an egg to allow her lesbian partner to bear a child has the rights and responsibilities associated with being a parent -- including visitation and other rights -- even if the parties intentionally and expressly agreed that the donor would be a "pure" donor and have no rights as a parent. This seems wrong to me; indeed, potentially discriminatory. Men who are sperm donors have no parental rights, and women can use those services to bear a child without letting this "parent" into their lives or the lives of their child. My intuitive sense is that the same should be true for egg donors, including lesbian couples in which one of the parties is the donor.

What's important to recognize about K.M. is that the fact that the trial court found (and, even upon reading the cold record, it seems entirely right to me) that both parties deliberately intended the donor to have no parental rights to the child. And for good reason: the woman who bore the child had already made 13 attempts with anonymous egg donors, wanted to be a single mother, had seen too many lesbian couples break up and then fight about custody, and would agree to let her partner donate an egg only if it was clear that she would not thereby gain any parental rights. This seems entirely rational to me. Why should the woman be forced to continue using anonymous donors -- including the (large!) expense associated with this practice -- if there was a person whose genetic traits she knew and liked and who was willing to be a (much less expensive) donor? Why shouldn't we respect her wishes to be a single parent, just like we're willing to recognize nearly identical rights of women who use sperm donors?

Sure, there's a real argument to the contrary, and one that's articulated by not only most of my friends (all of whom, by the way, are not only wicked smart, but also potentially much more informed and sophisticated than I am on the subject) but also by Debra Back Marley (a former student of mine) and Bob Fellmeth in the amicus brief that the Children's Advocacy Institute here at USD filed in the case. It may well be in the best interest of the child for them to have two parents rather than one. Perhaps that's why we want to compel the parties to undertake parental responsibilities even when they expressly agree not to: because if you're in a relationship (of whatever form) and bear a child, you've got parental rights and responsibilities, even if you don't want them.

That's a substantial, and intelligent, position. But I don't think that it's ultimately persuasive, at least to me. We deliberately do not find that argument compelling in a wide variety of other contexts, and allow women to use sperm donors without compelling them to share custody of their children with the biological father. We also allow anonymous egg donation as well, again finding the desire for "two parent" families to be trumped. I don't see that the situation involving a lesbian couple should be any different. Yes, the state may well prefer, as a general matter, two parent couples to one. But I think that this preference is outweighed by the right of individuals to create a family unit as they see fit. If they want to be single parents, I don't think that the state should stop them. Nor should it basically say, as here, to the woman who wants to bear a child with the egg of her lesbian partner: "You have to choose. Either don't have a kid with this woman's egg, or break up with her. Otherwise she's a parent -- and you'll have custody rights -- regardless of what you do." That just doesn't seem right or fair to me.

There's much more to be said here, obviously. But this is already way too long. (Now you see why I didn't finish it the day of the opinion!) Plus I've got a pretrial practice class in 10 minutes. Which I'm still not ready for. So I'll leave it for now. But I think that the dissent in this one probably has it right. Justices Kennard and Werdegar express their thoughts in a different way than I do. But they conclude -- I think rightly -- that when a lesbian donates her eggs to her partner, and intentionally and knowingly agrees to be a pure donor, that's indeed what she should be.

P.S. - I wish I could say more about the resurrection in this opinion of Justice Mosk's awesome term "casual inseminator". Which I love. Because, among other things, it brings a smile to my face to imagine any particular person being identified by that term. "Look, Ma, over there by the fire hydrant: A casual inseminator." But I totally have to run to class.