K.M. v. E.G. - 37 Cal. 4th 130, 33 Cal. Rptr. 3d 61, 117 P.3d 673 (2005)

Rule:

Cal. Fam. Code § 7613(b), which provides that a man is not a father if he provides semen to a physician to inseminate a woman who is not his wife, does not apply when a woman provides her ova to impregnate her partner in a lesbian relationship in order to produce children who will be raised in their joint home. Accordingly, when partners in a lesbian relationship decide to produce children in this manner, both the woman who provides her ova and her partner who bears the children are the children's parents.

Facts:

Petitioner K.M., an egg donor, sought to establish a parental relationship with twin five-year-old girls born to respondent E.G., the gestational mother, the donor’s former partner. When the children were born, the gestational mother and donor lived together and were registered domestic partners. The trial court granted the gestational mother’s motion to dismiss the petition based on the donor’s waiver, in an ovum donor form, of her right to claim legal parentage. The Court of Appeals affirmed the decision of the trial court. The donor appealed. 

Issue:

Under the circumstances, could the donor be allowed to establish parental relationship with the children born to the gestational mother, notwithstanding the existence of the donor’s waiver? 

Answer:

Yes.

Conclusion:

The Supreme Court reversed the decision in favor of the gestational mother, finding that both parties were mothers of the children. The Court held that the donor was a parent because genetic consanguinity could be the basis for a finding of maternity just as it was for paternity under the Uniform Parentage Act (UPA), Cal. Fam. Code § 7600 et seq. The Court noted that under Cal. Fam. Code § 7650, provisions applicable to determining a father and child relationship were used to determine a mother and child relationship insofar as practicable. The Court found, however, that, Cal. Fam. Code § 7613(b), which stated that a man was not a father if he provided semen to a physician to inseminate a woman who was not his wife, did not apply. Even if § 7613(b) applied to women who donated ova, it did not apply in the case at bar, which was not a true egg donation situation because the ova were supplied to produce children who would be raised in a joint home. The Court declined to apply an intent test and found that the donor's waiver did not affect the determination of parentage.