Lesbian Egg Donor Denied Rights

SAN FRANCISCO —  A woman whose eggs were implanted in her lesbian lover for the birth of twins has no parental rights, even though she is the biological mother, a state appeal court said Tuesday.

The case, which is to be appealed to the California Supreme Court, adds another legal twist to parental custody disputes, usually between a man and a woman. The case underscores that the issue of parental rights for gay or lesbian couples is unmapped territory.

The decision, based on a dispute between two California lesbians who reared twins together after one woman gave birth using the other’s eggs, is based on a 1993 California Supreme Court parental rights precedent. But a lesbian rights group and the attorney for the losing woman who sought parental rights after the two split up say Tuesday’s opinion is outdated and the court discounted evidence that the couple intended to rear the children as joint parents.

The appeal court, however, ruled that the birth mother, who was artificially inseminated at a San Francisco hospital, has full parental rights despite the fact that her ex-lover is the genetic mother of the children.

“An adoption decree would provide objective, formalized proof of the parties’ parentage intentions,” the 1st District Court of Appeal ruled.

But the losing woman’s attorney, Jill Hersh, said her client “didn’t adopt because she was the biological mother. She didn’t think she had to. The legal system hasn’t caught up with the modern-day facts of this case.”

Hersh and the National Center for Lesbian Rights said the ruling was a blow to gays and lesbians.

But the winning attorney, Diana Richmond, said the decision “beautifully upholds the freedom of choice of same-sex partners on whether both partners will or will not be the parents.”

She said the women in this case, whose identities the court did not disclose to protect the privacy of the 8-year-old twins, “had agreed that only one of them will be the parent.”

“She would have to adopt. They never agreed to an adoption and no adoption proceedings were initiated,” Richmond said.

The court ruled that, although the losing mother who donated her eggs was a loving, stay-at-home parent, “functioning as a parent does not bestow legal status as a parent.”

Shannon Minter, an attorney for the National Center for Lesbian Rights, said that if the losing mother, identified in court papers as K.M., were a man, she would have been awarded rights to the children, who have moved with the birth mother to Massachusetts and have little contact with the other woman.

“These children are going to be just as hurt as anybody else would by losing a parent,” Minter said. “Married or not, if K.M. was a man, she would have been automatically, without question, a legal parent.”

Minter based that assertion on a California Supreme Court decision in 2002 that granted a nonbiological father parental rights to a child he helped rear since birth.

But the appeal court based its decision on 1993 California Supreme Court precedent in which a surrogate mother tried to back out of giving her child to a married man and woman. The Supreme Court held that the adoptive parents were the lawful parents because it was their intention, not the birth mother’s, to be the parents when the child was conceived.

The losing mother in Tuesday’s case donated her eggs to her lover in 1995. They lived together in Marin County with the children until recently, when they separated, and the birth mother moved with the twins.