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Tuesday, August 23, 2005

Law - California Supreme Court expands same-sex parental rights

A story today in the NY Times by Adam Liptak reports:

The California Supreme Court ruled yesterday that both members of a lesbian couple who plan for and raise a child born to either of them should be considered the child's mothers even after their relationship ends.

The court, stepping into largely uncharted legal territory concerning same-sex couples and parenting, issued decisions in three cases, ruling that women whose partners gave birth had parental rights or obligations in all three.

The cases involved a request for child support, a petition to establish parental rights and an attack on a lower court ruling issued before a child's birth that the child should have two women listed as parents on her birth certificate.

"We perceive no reason," the Supreme Court ruled, "why both parents of a child cannot be women."

Courts in about half the states have allowed members of same-sex couples to adopt their partners' children. Yesterday's decisions considered the separate question of whether the law could require former members of such couples to assume parental rights and obligations. * * *

The decisions broke new ground, advocates on both sides agreed.

"It is unprecedented around the country," said Joan Hollinger, who teaches adoption law at the University of California, Berkeley, "to have a state's highest court recognize that in the absence of an adoption, and even in the absence in some instances of a domestic partnership agreement, that two men or two women could be the full legal parents of a child born through assisted reproduction." * * *

The decisions may also have implications for same-sex marriage in California. The question of whether the state Constitution requires the recognition of such marriages is before a state appeals court.

The three decisions, all dated 8/22/05, are: Elisa B. v. Sup. Ct.; K.M. v. E.G.; and Kristine H. v. Lisa R.

Here is the LA Times coverage. Some quotes:

SAN FRANCISCO — The California Supreme Court on Monday became the first in the nation to grant full parenting rights and obligations to gays and lesbians who have children.

In three closely watched cases, the justices set rules in an area where changes in family structure and advances in technology have outpaced the evolution of legal principles. In each case, they delivered a ruling that guaranteed that children born to gay couples have two legally recognized parents.

Each of the cases involved a lesbian couple who had children and later split up.

In one case, the court ruled unanimously that a lesbian mother cannot avoid paying child support for her partner's biological children who were conceived when the pair lived together.

That ruling puts lesbian couples on a par with unmarried couples whose relationships end.

In a second case, the justices, on a 4-2 vote, held that a Marin County woman who provided eggs to a partner, who was then artificially inseminated, is legally the children's second mother.

That ruling came despite the fact that before the children were conceived, the woman who donated the eggs had signed an agreement with her partner waiving parental rights.

The third case, involving a Los Angeles-area couple, was decided largely on procedural grounds. It upheld the parental rights of a woman whose partner became pregnant through artificial insemination while the two lived together. * * *

The rulings came as the battle over the rights and obligations of gay families is heating up statewide.

A case challenging the constitutionality of California's law limiting marriage to "a man and a woman" is moving through the courts and is expected to reach the justices next year. And a bill that would allow same-sex marriage has been revived in the Legislature.

On the other side of the debate, opponents of gay marriage are pushing to place several constitutional amendments on the June 2006 ballot that would ban same-sex marriage and roll back domestic partner benefits. Those existing domestic partnership rights already cover many gay couples with children. For children born after Jan. 1 of this year, state law says that children born to registered domestic partners should be treated the same as children born to married couples.

But tens of thousands of gay couples — no one knows precisely how many — had children before the domestic partnership law went into effect or have not registered as domestic partners. For them, the rules have been confusing and often inconsistent.

Monday's rulings sought to bring order to the legal chaos. The rulings drew praise from advocates for gay rights and were sharply criticized by groups opposed to same-sex unions.

Posted by Marcia Oddi on August 23, 2005 07:54 AM
Posted to General Law Related