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Introduction of Case:

K.M. v. E.G., 118 Cal. App. 4th 477 is a case that was presented to the Superior Court of California, filed in August 2005. The question proposed before the court was to determine the legal maternal status in a same-sex relationship. Because this case involves minor children, the parties involved are identified as K.M., the petitioner, and E.G., the respondent.

K.M. v. E.G. set a precedent in regard to same-sex parenting, who could be established as a mother in a same-sex relationship, and after one has ended. It also set and used new precedents in terms of establishing parentage, using decisions in Elisa B. v. Superior Court and with reference to the Uniform Parentage Act.

E.G, the Defendant is the gestational mother of the twin girls, whom the case is over, and the previous sole custody parent of the girls (National Center for Lesbian Rights). The individual presented as K.M. is the petitioner in this case. E.G was the former domestic partner of K.M., the Plaintiff, and the Appellant in the case (Standford Law School). Following the dissolving of the partnership in March 2001, K.M. filed a petition to establish a parental relationship with the twins, after being present in their lives in a parental capacity for the 5 years prior to the separation (Standford Law School).

Following this petition, E.G. moved to dismiss on the grounds of, allegedly, explicitly stating she wanted to be a single mother; along with the contract signed by K.M. relinquishing her rights to the children born from her donated ovum (Standford Law School). The Superior Court granted this dismissal on the grounds that K.M. did sign her right to the children away when she donated her ovum to E.G (Standford Law School).

Background:

The relationship between K.M. and E.G. started in June 1993. In March 1994, K.M. and E.G. began living together in San Francisco and registered as Domestic Partners (Standford Law). E.G.’s adoption and fertility journey started in November 1993 (Standford Law School). From July 1993 through November 1994, K.M. went with E.G. to her artificial insemination appointment. January 1995, after E.G., had received information regarding her infertility diagnosis, from Dr. Mary Martin of the fertility practice of the University of California at San Francisco Medical Center (UCSF), proposed that K.M.'s ovum could be used for E.G., to conceive. K.M. agreed with E.G., not to disclose her genetic connection to the pregnancy.

March 8th, 1995, K.M. signed the ovum donation consent form (Standford Law School). K.M. signed the last page of the four-page document with the following statement "I specifically disclaim and waive any right in or any child that may be conceived as a result of the use of any ovum or egg of mine, and I agree not to attempt to discover the identity of the recipient thereof." (Standford Law)

The ovum was extracted from K.M. on April 11, 1995, and the subsequent embryos were implanted in E.G. on April 13th, 1995 (Standford Law School). The twins were born on December 7th, 1995 (Standford Law School). E.G., is the legal birth mother of the twins, accepting sole custody of them, adding them as the beneficiaries of assets, and adding them to her health insurance, and she co-parented with K.M. (Standford Law School).

This included K.M. being listed as a parent of the twins with their school and K.M.’s parents being referred to as the grandparents of the twins (Standford Law School). The two married and exchanged rings at Christmas, 1995 (Standford Law School).

During the marriage, tensions rise around K.M.’s genetic ties to the twins being disclosed (Law.com), eventually ending in the dissolution of the partnership in March 2001. In September 2001, E.G moved to Massachusetts to be closer to E.G.’s mother (Standford Law School).

Superior Court Decision:

E.G.,’s response to K.M.'s petition was dismissed on the grounds that K.M. had willingly donated and surrendered her claim to the ovum used to impregnate E.G. E.G., contends she was to be the sole parent regardless of K.M.’s involvement or contribution regarding the children. The Superior Court of Marin County agreed and granted E.G., the motion to dismiss the petition (Standford Law School).

Court of Appeals Decision:

The Court of Appeal, First District, affirmed the decision, finding that E.G. intended to raise the children from the ovum donation herself; and that K.M.’s status was consistent with a sperm donor.

Throughout the trial, and resulting trial reviews, the intent of parentage between E.G. and K.M. is argued. E.G. testifies that she made clear to K.M. that she planned to be the single mother of the twins, and that this was known and accepted by K.M. While K.M. alleges that this was not the established agreement and that she and E.G. had agreed to co-parent the children (Stanford Law School).

Supreme Court Ruling:

Using the precedent set in ''Elisa B. v. Superior Court - 37 Cal. 4th 108, 33 Cal. Rptr. 3d 46, 117 P.3d 660 (2005) which ruled that contrary to the Johnson v. Calvert'' case that found that a child may have only one natural mother, a child could have two female parents.

Once this was established, K.M. argued that she had presumed parentage under the Uniform Parentage Act.

The Supreme Court reversed the judgment of the Court of Appeals.

See Also

Johnson v. Calvert, 5 Cal. 4th 84 (1993)

In Johnson v. Calvert, motherhood is recognized and awarded based on genetic consanguinity and birth as recognized by the Uniform Parentage Act (Frug). It is also precedent that if these two factors fall onto two different women, the one who intended to raise the child, under California law, is the natural mother (Frug). Johnson also held that there may only be one natural mother of a child/ren.

''Elisa B. v. Superior Court - 37 Cal. 4th 108, 33 Cal. Rptr. 3d 46, 117 P.3d 660 (2005)''

Companion cases to K.M. v E.G., Elisa B. was cited as the reversal of a precedent set by Johnson v. Calvert. In Elisa B., a case that also involved custody issues in a separated same-sex couple, it was ruled that, in light of the circumstances presented in the case, Johnson does not prevent the legal acknowledgment of two mothers to one child/ren (LexisNexis).

Domestic Partnership as defined by the State of California is two adults (Same-Sex or Opposite sex) entering a legal relationship by registering as domestic partners. Once registered they are granted the same rights, protections, responsibilities, obligations, benefits, and duties under the law as a married couple. It is important to note the State of California did not extend rights regarding children and domestic partnerships until 2003 with the passing of AB 205. (Kim)

The Uniform Parentage Act (UPA) was developed in 1978 to create the framework of parentage, helping to define who is considered a parent from the legal perspective. In the case of K.M. v. E.G., the UPA was consulted. The relationship defining a parent was between mother and child or father and child. This also included parents who were not legally married, and marital status does not constitute parentage.