Calif. ruling protects children of homosexuals

updated 9:27 a.m. ET Aug. 23, 2005

SAN FRANCISCO - In the latest ruling to recognize rights of same-sex couples, the California Supreme Court has said gay and lesbian couples who raise children are lawful parents and must provide for their children if they break up.

The state’s custody and child support laws that hold absent fathers accountable also apply to estranged gay and lesbian couples who used reproductive science to conceive, the high court ruled Monday.

Being a legal parent “brings with it the benefits as well as the responsibilities,” said Justice Joyce Kennard.

The decision comes a month after the justices ruled that a California domestic partner law grants gays and lesbians who register with the state many of the same rights as married couples, but does not allow them to marry.

“The court is now protecting the children of same sex parents in gay families in the same way children are protected with heterosexual couples in heterosexual families,” said Jill Hersh, who argued the case of a Marin County woman who was granted the right to be the second mother of twins after the birth mother moved out of state.

However, groups opposing gay marriage decried the justices’ actions.

“Today’s ruling defies logic and common sense by saying that children can have two moms,” said attorney Mathew Staver of Liberty Counsel. “That policy establishes that moms and dads as a unit are irrelevant when it comes to raising children.”

The ruling stemmed from three cases involving lesbian parents.

Responsibility to children
In the Marin County case, the court gave parental rights to Hersh’s client, who had donated her eggs to her lesbian lover. The partner then had twins. After the couple split up, a lower court said the egg donor was not a legal parent because she did not give birth.

Lower courts and dissenting justices noted the woman, K.M., voluntarily signed a document declaring her intention not to become a parent of any resulting children, and should not be granted parental status.

But Justice Carlos Moreno, writing for the 4-2 majority, said a woman who supplies eggs to help impregnate her lesbian partner, with the understanding the child will be raised in their home, cannot evade her responsibility to that child.

In the other cases, an El Dorado County woman was ordered to pay child support for her former lesbian partner’s biological children, and a woman from Los Angeles was told she could not legally terminate the parental rights of her former lesbian lover, years after obtaining a court order stipulating both were parents.

Both cases were decided unanimously.

Emily B., the El Dorado County woman whose former lover, Elisa B., must now pay to support the children, said she might be able to get off of welfare now.

“I’m absolutely overjoyed today,” she said.

The court followed its 2002 decision in which it said men who establish themselves as parental figures may become legal fathers even if they did not help conceive the child.

“These legal principles apply with equal force in this case,” Kennard wrote in a concurring opinion in the Marin County case.

In a sign of the broad acceptance same-sex parents have in California, the state attorney general’s office supported the women who had asked the justices for an updated interpretation of the state’s parental rights laws. Several child-advocacy organizations filed friend-of-the-court briefs taking the same side.

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