In 2005 the California Supreme Court handed down a decision where a woman who donated ova to her same sex partner for in vitro fertilization, but waived rights to offspring, would actually be considered a mother to the resulting children as well.  The facts of the case, entitled K.M. v. E.G. (2005) 37 Cal.4th 130, 33 Cal.Rptr.3d 61, 117 P.3d 673, are as follows:

The two women began living together in a committed relationship in 1994.  They registered as domestic partners in San Francisco that same year.  One of the partners, E.G, who had been trying to become a single parent for many years, learned that she didn’t have sufficient ova to make in vitro fertilization possible.  When E.G.’s doctor suggested that her partner donate her ova, E.G. balked because their relationship was still relatively new.

Later, E.G. asked her partner to donate her ova, but only if the partner would “really be a donor,” meaning that E.G. would be the “mother of any child.”  Her partner agreed, and K.M. signed a consent form supplied by the fertility clinic.

The consent form stated that K.M. would waive any rights and relinquish any claim to the ova or any resulting offspring, which the recipient could regard as her own.  The form also specifically stated that the donor disclaimed and waived any rights in or to any child conceived with her eggs, along with the right to a relationship with, or inheritance from any such child.

Upon making the donation, the resulting embryos were implanted in E.G. in 1995.  E.G. subsequently became pregnant with twins, who were born later that year.  Over the next five years, the women and children lived together as a family.  Both K.M. and E.G. shared parental roles.  When their relationship ended in 2001, K.M. filed a petition to establish a parental relationship with the twins.

Upon hearing the petition, the trial court found K.M. had relinquished any claim to parentage by signing the donor consent form, and that the two women had an oral agreement that E.G. would be the twins’ sole parent.  The court determined K.M. lacked standing to petition for parentage, and her petition was denied.  On appeal, the First District affirmed, reasoning that K.M.’s status was similar to that of a sperm donor.

The California Supreme Court reversed.  The majority held that:

  1. Family Code § 7613(b), which states that a donor who provides semen to licensed physician or sperm bank for artificial insemination/in vitro fertilization of woman other than his wife is not treated in law as natural father of resulting child, does not apply where a woman donates ova to her same-sex partner in order to produce a child that will be raised in their joint home; and
  1. Both women are to be considered mothers of the twins by reason of K.M.’s donated ova and by reason of E.G having given birth.

The majority justices also concluded that K.M. could not waive her parental rights or her responsibility to support her children by signing the consent form or making an oral agreement.  This ruling is consistent with California family law courts that seek to shape the law around finding parents who are legally responsible for supporting their children, thereby removing this burden from the public.