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from the August 25, 2005 edition
California court affirms gay parenting
Ruling sets responsibilities, rights of homosexual parents but spurs backlash by same-sex marriage opponents.
By Amanda Paulson and Daniel B. Wood | Staff writers of The Christian Science Monitor
CHICAGO AND LOS ANGELES – Defining parenthood is far less simple than it used to be.
That fact was made abundantly clear by the California Supreme Court's ruling this week in three cases involving reproductive technology and lesbian relationships.
In California, the landmark decisions - which granted full parenthood to former partners despite the absence of legal adoption or, in two of the cases, a biological connection - have made the terrain a little clearer and solidified the direction in which many courts are moving: conferring the rights and responsibilities of parenthood based on intent and psychology rather than biology, adoption, or marriage.
But as the decisions have been lauded and decried across the country, they've also underlined the vastly different patchwork of how states handle the often-murky relationships at the nexus of reproductive technology and shifting family structures.
"I regard these three decisions as unprecedented because they go so far toward protecting children without regard to marital status or biology or gender of the parent, but at the same time they're not unique," says Joan Hollinger, an adoption and parentage law expert at the University of California in Berkeley. "They're part of the quest on the part of so many states to figure out how to define parentage when sex is separated from reproduction."
At least nine states officially allow second-parent adoption - often sought by gay couples - and several confer visitation rights or have ordered child support from nonbiological or nonadoptive parents.
But the California cases are the first in which such individuals have been declared full legal parents, with the rights of, say, inheritance or social-security benefits.
The rulings also affect heterosexual couples who use reproductive technology but this week, much of the reaction has focused on the court's statement that "We perceive no reason why both parents of a child cannot be women."
"Same-sex couples are now able to procreate and have children, and the law has to catch up with that reality," says Shannon Minter, legal director of the National Center for Lesbian Rights. Like many gay-rights advocates, he applauded the decision for recognizing parental bonds outside of gender or marital status.
The three decisions, while all involving reproductive technology, addressed very different situations. In one, a woman was ordered to pay child support for the biological children of her former lesbian partner, who has relied on welfare since the two split up.
In the second, a woman who years earlier had gotten a court order - and birth certificate - declaring both herself and her partner to be parents, was told she could not terminate her former partner's rights.
Perhaps the most unusual case involved a couple in which one woman donated an egg to her partner, who bore the twin children. At the time of donation the woman, whose initials are K. M., signed a form giving up parental rights, although both women cared for the twins for six years.
Two dissenting judges in that opinion noted that ignoring the release form might hold implications for other sperm and egg donors who sign waivers believing they've relinquished their obligations. But the majority felt that the intent and act of par- enting were sufficient to grant K.M. the rights she sought.
"As the only existing precedent on the issues that it covers, it will be a significant point of reference" for other states, notes Jill Hersh, K.M.'s lawyer.
While these three rulings apply only in California, the state is often at the forefront of reproductive-technology decisions, and may give guidance to other states that increasingly are faced with complex family structures.
Technology outpaces law
"I tell my students I couldn't invent the kind of family situations in which people actually live," says Nancy Polikoff, a professor at the American University Law School. "And it's the job of the courts to resolve these disputes with the law they have at their disposal."
Such law, formed decades before sperm donors, surrogate parents, and same-sex parents were common concepts, is often hardly adequate. But increasingly, say experts, courts are ruling based on the individuals' intent to act as parents and principles like parenthood by "estoppel" - in which an acting parent-child relationship creates legal parenthood.
Resolving conflicting state laws can be tricky, however. In one much-publicized case, a couple who had a civil union in Vermont and had a daughter through artificial insemination is battling in courts in both Vermont and Virginia, where the biological mother now lives with her child.
A Vermont court awarded the former partner visitation rights, but the other mother is now hoping to use Virginia's Affirmation of Marriage Act - which declares that the state does not recognize civil unions - to declare her the sole parent.
"It's an example of a situation where the fact that different states have different laws can cause a problem," Professor Polikoff says.
Critics of the California rulings warned of a "slippery slope" in which biology is ignored and the number of parents a child has keeps growing.
"This blows apart the definition of family more than ever," says Randy Thomasson, president of the Campaign for Children and Families in California. "It's about the courts pushing social engineering on the unsuspecting public."
Meanwhile, California opponents of gay marriage are pressing to put constitutional amendments on the June 2006 ballot that aims to push back currently recognized domestic partnership benefits and ban gay marriage.
But even as advocates on both sides debate repercussions of the court's rulings, K.M. is thrilled just knowing that she'll soon be reunited with her twin daughters, who have been living in Massachusetts with their other mother for several years.
"I am just like over the moon," she says. "I woke up today for the first time in four years and looked at the photos of my daughters by the bed and could do it without any pain or sadness.... I hope this means that all children and families will be protected from here out."
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