After Gay Parents Split Up

SAN FRANCISCO —  The petite woman in a pinstriped suit recalled her last visit with her 8-year-old twin daughters. It had been months since she had seen the girls, and a court had just ruled that she had no legal right ever to be with them again.

“I told my girls they needed to know that every moment of the day, every minute of every hour, they are in my mind and they are in my heart,” said the 42-year-old Marin County resident, her face wet with tears.

Known in court papers only as K.M., the woman is the girls’ genetic mother. She could not bear a child because of a diseased uterus; her partner, a woman known in court as E.G., was infertile. K.M. donated her eggs to her partner. Using a sperm donor, her partner conceived, and the women raised the twins together for five years.

Three years ago, the couple split up. K.M. says her former partner no longer allows her to visit or talk to the girls. Courts have ruled that K.M. has the legal status of an egg donor and no parental rights, in part because she signed a standard donor form at the fertility clinic.

The case, which K.M. has appealed to the California Supreme Court, is one of a growing number around the country in which new reproductive technologies and nontraditional families collide with old legal principles.

Though courts often stretch to give children both a legal father and a legal mother, the formulas for deciding parenthood frequently do not fit the realities of same-sex couples.

“When you read the legal cases,” said Deborah Wald, a family-law attorney in San Francisco, “what becomes crystal clear is that children of same-sex couples aren’t entitled to the same level of protection as children of opposite-sex couples.”

Opponents of same-sex marriage find that entirely appropriate. Court battles between gay parents show why couples of the same gender should not have children, they say.

“Every child needs a mom and a dad,” said Dale Schowengerdt, a staff lawyer for the Alliance Defense Fund, which wages legal battles promoting traditional religious views. “Every male couple deprives a child of a mom; every female couple deprives a child of a dad.”

But advocates for gay couples say changes in technology and family structures make those arguments out of date. The last census found about 27,000 households in the state where children were being reared by parents of the same gender.

Technology now allows two women to become the natural mothers of a child, two men to mix their sperm and create a baby with a donated egg and a hired surrogate.

“Neither the Legislature nor the courts are keeping up at all with the changes,” Wald said.

In ruling against K.M., a Court of Appeal in San Francisco conceded that the decision would have “harsh consequences” for the children.

“There is no dispute that K.M. acted as an affectionate mother to the girls, and that the girls are emotionally attached to her,” the judges said, while maintaining that the law left them no choice.

Expanding the legal definition of a parent could allow others -- child care providers and relatives or friends of a child, for example -- to seek parental status, courts have said.

“Functioning as a parent does not bestow legal status as a parent,” the appeals court ruled in K.M.’s case.

The law in California is changing. Under a new statute that will take effect next year, same-sex couples who are registered with the state as domestic partners will both be legal parents to children born into their households. But the law will not affect children born before Jan. 1, 2005.

Same-sex couples who already have children can ensure parental rights using other legal processes, including adoption. But until recently, some counties in California refused to let same-sex couples employ adoption procedures, Wald said. Moreover, she said, many couples never go through the formalities.

“I actually think it is not all that uncommon for people to never get around to getting their legal paperwork together in many areas of their life,” she said.

Courts in several other states have granted custody or visitation rights to nonbiological parents who had not adopted. And just weeks ago, in the first decision of its kind in California, a Court of Appeal in Los Angeles ruled that a woman might be entitled to some parental rights over her former lesbian partner’s objections if she could show that she had treated the partner’s child as her own.

Despite that ruling, most lawyers say adoptions remain the safest route for same-sex couples. “If you don’t do a second-parent adoption in California, the other mom can be completely cut off from her child and the child cut off from somebody she completely considers her parent,” said Nancy Polikoff, a professor at the American University Law School in Washington, D.C.

Now, two cases -- K.M.’s quest for shared parental rights and an effort by El Dorado County to force a woman to pay child support to her former partner -- could change the entire state’s approach. The state Supreme Court is expected to decide later this summer whether to consider the cases.

In the El Dorado County case, Emily B., as she is known in court, was the stay-at-home parent in a lesbian relationship. She and her partner, Elisa Maria B., decided to have children using the same semen donor. Elisa got pregnant first and delivered a healthy boy in 1997. Emily bore twins a few months later, one with severe disabilities.

The women had attended each other’s medical appointments during the pregnancies and were both present at the births, court records say. Both women nursed all three babies, chose their first names and gave them hyphenated last names.

Emily cared for the children while Elisa worked. Elisa provided medical coverage and listed all three as dependents on her income tax forms.

The birth of three children so close in time and the special needs of one of them eventually strained the relationship.

“It was extraordinarily stressful,” Emily said. “I had two children in ICU, she had a 4-month-old baby, I found out my son had a hole in his heart and Down syndrome.... All of us breastfeeding.... Our life wasn’t the picture I believe she wanted it to be.”

In 1999, after six years together, Elisa packed up the car in front of their home, put her son, who was nearly 2, in his car seat and moved back to San Francisco. She helped Emily financially until May 2001, when contact and money were cut off.

Emily eventually applied to El Dorado County for welfare benefits, and the county tried to make Elisa pay child support. The Court of Appeal said no.

“Because Elisa is not the twins’ natural mother and because for obvious reasons she is not their father, she does not have any of the rights and privileges of a parent,” a three-member panel ruled May 20. Without those rights, she also does not have the obligations, the judges said.

Both the county and state Atty. Gen. Bill Lockyer have asked the high court to review the case.

In a case involving a man and a woman who each brought children into a marriage, both partners would be responsible for all the children if they later split up.

“As a matter of public policy, same-sex couples should have the same financial responsibilities toward the children they bring into this world as those of opposite-sex couples,” Lockyer said when he intervened.

The approach that courts have taken to gay families troubles Kate Newlin, 24, who was born into a household of two lesbian mothers. When she was 6, Kate’s biological mother, Nancy Springer, left her partner, Michelle Graham, and took Kate and her younger brother, Seth. Courts refused to give Graham any right to see the children.

After Kate became depressed, Springer, on the advice of a psychologist, eventually let the children see Graham. At the age of 14, Kate insisted on living with Graham, and Springer relented.

Two years later, Springer, who had moved to Oklahoma with Seth, was killed in a car crash. Seth was about to be placed in a foster home when Graham retrieved him and, with the support of his grandparents, obtained legal guardianship.

Both Kate and Seth Newlin, who live with Graham in Berkeley, said courts should not have permitted their biological mother to separate them from a woman they had known from birth as their other mother.

Both brother and sister said that they had struggled with resentment toward Springer but that both had forgiven her. Kate Newlin said she was simply misguided.

“I feel that she loved me,” Newlin said. “She wouldn’t have let me come back and be with my mom [Graham] if she didn’t love me.”

In K.M.’s case, the courts never ruled on the children’s welfare. Instead, the judges said they were bound by precedent to determine who was the intended parent when the twins were conceived.

K.M.’s former partner has said she did not intend to give K.M. parental rights. She did not want to have custody problems if they split up. She said K.M. understood.

“Nothing impairs lesbians and gay men from becoming joint parents by agreement,” said Diana E. Richmond, the lawyer for the birth mother. “It is just that these two women made a different agreement.”

K.M. denies that she ever intended to be a mere donor. Her lawyer, Jill Hersh, argues that intent at conception should not determine parenthood.

“We know there are millions of men out there who are treated as fathers who never intended to be,” she said. What should count, Hersh argues, is how the couple act after the children are born.

The two women and the children had lived and acted as a two-parent family, K.M. says. The couple exchanged rings and gave the twins their mothers’ names as middle names. K.M. said she did the night feedings when her partner went back to work, bought the girls clothes and shared decision-making over schools and where the family would live.

E.G., who earned more than K.M., paid more of the girls’ expenses, but not all. Both women were listed as mothers on school and medical records and both attended school conferences.

The girls called their birth mother “Mama” and K.M. “Boss” or “Mama Boss.” They called K.M.’s parents “Granny” and “Papa.”

For years, the two women did not tell anyone, including the children, that K.M. was their genetic mother. But K.M. wanted to end the secret, and the issue became a point of stress that helped lead to their breakup.

Around the time the twins turned 5, K.M. revealed the secret -- against the birth mother’s wishes, according to Richmond.

“I told them that some people have a mom and dad and some people have two moms,” K.M. said. “They asked how did it happen? ... I told them that they came from my eggs that grew in [their birth mother.] They were like, ‘Wow!’ ”

E.G. and the girls now live in Boston. K.M. said that gifts she had sent the girls had been returned and that she had not been permitted to visit them since February.

The case provides a good example of how same-sex couples, particularly women, are treated differently in court from heterosexual couples, Polikoff said.

Courts go out of their way to give children legal fathers, she said. Men who donate semen to lesbian couples without going through fertility clinics have been “extremely successful” in winning parental rights, even when they have signed papers promising not to seek parentage, she said.

But “egg donation is always going to involve a doctor” and possibly forms waiving parental rights, she said.

Regardless of gender, same-sex couples face legal issues as complex as the reproductive technology they can employ.

Wald said she had two sets of gay male clients who had fathered children together. One couple mixed their sperm with donated eggs and implanted the embryos in a hired surrogate. Twins were born, and genetic testing showed that each man had sired one of the twins.

In the second case, the men also mixed their sperm but never determined who was the biological father. “They very consciously made the choice that they did not want to know,” Wald said.

Ensuring legal rights for both men in such cases is tricky, she said.

One generally declares his paternity when the surrogate is pregnant, and the other adopts the child after birth. But if a married surrogate later challenged the intended fathers, even Wald, with all her experience involving nontraditional families, couldn’t predict how a court would rule.

“There is a lot of guessing about how to do this right,” she said.

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Gay parents Census 2000 identified more than 100,000 same-sex households in California, many of which include children younger than 18.

California same-sex households: 100,532 No children: 73.3% With children: 26.7%

Nationwide same-sex households: 658,711 No children: 71.8% With children: 28.2%

Source: U.S. Census Bureau