Stanford Law School - Robert Crown Law Library

Filed 8/22/05 (opns. filed this date should appear in this sequence: S125912, S125643, & S126945)

IN THE SUPREME COURT OF CALIFORNIA

K.M., )

Plaintiff and Appellant,
S125643
v.
Ct.App. 1/5 A101754
E.G., )
)
Marin
County
Defendant and Respondent.
Super. Ct. No. CIV020777

We granted review in this case, as well as in Elisa B. v. Superior Court
(Aug. 22, 2005, S125912) __ Cal.4th __, and Kristine H. v. Lisa R. (Aug. 22,
2005, S126945) __ Cal.4th __, to consider the parental rights and obligations, if
any, of a woman with regard to a child born to her partner in a lesbian
relationship.
In the present case, we must decide whether a woman who provided ova to
her lesbian partner so that the partner could bear children by means of in vitro
fertilization is a parent of those children. For the reasons that follow, we conclude
that Family Code section 7613, subdivision (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
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children in this manner, both the woman who provides her ova and her partner
who bears the children are the children’s parents.
FACTS
On March 6, 2001, petitioner K.M.1 filed a petition to establish a parental
relationship with twin five-year-old girls born to respondent E.G., her former lesbian
partner. K.M. alleged that she “is the biological parent of the minor children” because
“[s]he donated her egg to respondent, the gestational mother of the children.” E.G.
moved to dismiss the petition on the grounds that, although K.M. and E.G. “were
lesbian partners who lived together until this action was filed,” K.M. “explicitly
donated her ovum under a clear written agreement by which she relinquished any
claim to offspring born of her donation.”
On April 18, 2001, K.M. filed a motion for custody of and visitation with the
twins.
A hearing was held at which E.G. testified that she first considered raising a
child before she met K.M., at a time when she did not have a partner. She met K.M.
in October, 1992 and they became romantically involved in June 1993. E.G. told
K.M. that she planned to adopt a baby as a single mother. E.G. applied for adoption
in November, 1993. K.M. and E.G. began living together in March, 1994 and
registered as domestic partners in San Francisco.
E.G. visited several fertility clinics in March, 1993 to inquire about artificial
insemination and she attempted artificial insemination, without success, on 13
occasions from July, 1993 through November, 1994. K.M. accompanied her to most
of these appointments. K.M. testified that she and E.G. planned to raise the child

1
In order to protect the confidentiality of the minors, we will refer to the
parties by their initials.
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together, while E.G. insisted that, although K.M. was very supportive, E.G. made it
clear that her intention was to become “a single parent.”
In December, 1994, E.G. consulted with Dr. Mary Martin at the fertility
practice of the University of California at San Francisco Medical Center (UCSF).
E.G.’s first attempts at in vitro fertilization failed because she was unable to produce
sufficient ova. In January, 1995, Dr. Martin suggested using K.M.’s ova. E.G. then
asked K.M. to donate her ova, explaining that she would accept the ova only if K.M.
“would really be a donor” and E.G. would “be the mother of any child,” adding that
she would not even consider permitting K.M. to adopt the child “for at least five years
until [she] felt the relationship was stable and would endure.” E.G. told K.M. that she
“had seen too many lesbian relationships end quickly, and [she] did not want to be in
a custody battle.” E.G. and K.M. agreed they would not tell anyone that K.M. was the
ova donor.
K.M. acknowledged that she agreed not to disclose to anyone that she was the
ova donor, but insisted that she only agreed to provide her ova because she and E.G.
had agreed to raise the child together. K.M. and E.G. selected the sperm donor
together. K.M. denied that E.G. had said she wanted to be a single parent and insisted
that she would not have donated her ova had she known E.G. intended to be the sole
parent.
On March 8, 1995, K.M. signed a four-page form on UCSF letterhead entitled
“Consent Form for Ovum Donor (Known).” The form states that K.M. agrees “to
have eggs taken from my ovaries, in order that they may be donated to another
woman.” After explaining the medical procedures involved, the form states on the
third page: “It is understood that I waive any right and relinquish any claim to the
donated eggs or any pregnancy or offspring that might result from them. I agree that
the recipient may regard the donated eggs and any offspring resulting therefrom as her
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own children.” The following appears on page 4 of the form, above K.M.’s signature
and the signature of a witness: “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.” E.G. signed a
form entitled “Consent Form for Ovum Recipient” that stated, in part: “I
acknowledge that the child or children produced by the IVF procedure is and shall be
my own legitimate child or children and the heir or heirs of my body with all rights
and privileges accompanying such status.”
E.G. testified she received these two forms in a letter from UCSF dated
February 2, 1995, and discussed the consent forms with K.M. during February and
March. E.G. stated she would not have accepted K.M.’s ova if K.M. had not signed
the consent form, because E.G. wanted to have a child on her own and believed the
consent form “protected” her in this regard.
K.M. testified to the contrary that she first saw the ovum donation consent
form 10 minutes before she signed it on March 8, 1995. K.M. admitted reading
the form, but thought parts of the form were “odd” and did not pertain to her, such
as the part stating that the donor promised not to discover the identity of the
recipient. She did not intend to relinquish her rights and only signed the form so
that “we could have children.” Despite having signed the form, K.M. “thought
[she] was going to be a parent.”
Ova were withdrawn from K.M. on April 11, 1995, and embryos were
implanted in E.G. on April 13, 1995. K.M. and E.G. told K. M’s father about the
resulting pregnancy by announcing that he was going to be a grandfather. The
twins were born on December 7, 1995. The twins’ birth certificates listed E.G. as
their mother and did not reflect a father’s name. As they had agreed, neither E.G.
nor K.M. told anyone K.M. had donated the ova, including their friends, family
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and the twins’ pediatrician. Soon after the twins were born, E.G. asked K.M. to
marry her, and on Christmas Day, the couple exchanged rings.
Within a month of their birth, E.G. added the twins to her health insurance
policy, named them as her beneficiary for all employment benefits, and increased
her life insurance with the twins as the beneficiary. K.M. did not do the same.
E.G. referred to her mother, as well as K.M.’s parents, as the twins’
grandparents and referred to K.M.’s sister and brother as the twins’ aunt and
uncle, and K.M.’s nieces as their cousins. Two school forms listed both K.M. and
respondent as the twins’ parents. The children’s nanny testified that both K.M.
and E.G. “were the babies’ mother.”
The relationship between K.M. and E.G. ended in March, 2001 and K.M.
filed the present action. In September, 2001, E.G. and the twins moved to
Massachusetts to live with E.G.’s mother.
The superior court granted the motion to dismiss finding, in a statement of
decision, “that [K.M.] . . . knowingly, voluntarily and intelligently executed the
ovum donor form, thereby acknowledging her understanding that, by the donation
of her ova, she was relinquishing and waiving all rights to claim legal parentage of
any children who might result from the in vitro fertilization and implantation of
her ova in a recipient (in this case, a known recipient, her domestic partner [E.G.]).
. . . [K.M.]’s testimony on the subject of her execution of the ovum donor form
was contradictory and not always credible.
“[K.M.] and [E.G.] agreed prior to the conception of the children that
[E.G.] would be the sole parent unless the children were later adopted, and [E.G.]
told [K.M.] prior to her ovum donation that she ([E.G.]) would not consider an
adoption by [K.M.] until some years later. [E.G.] and [K.M.] agreed in advance of
the ovum donation that they would not tell others of [K.M.]’s genetic connection
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to the children (they also agreed that if and when it became appropriate they
would consider how to inform the children); and they abided by this agreement
until late 1999.
“. . . By voluntarily signing the ovum donation form, [K.M.] was donating
genetic material. Her position was analogous to that of a sperm donor, who is
treated as a legal stranger to a child if he donates sperm through a licensed
physician and surgeon under Family Code section 7613[, subdivision] (b). The
Court finds no reason to treat ovum donors as having greater claims to parentage
than sperm donors. . . .
“The Court accepts the proposition that a child may have two legal mothers
and assumed it to be the law in its analysis of the evidence herein. [¶] . . . [¶]
“[K.M.]’s claim to ‘presumed’ parenthood rests upon her contention that
she has met the criteria of Family Code section 7611[, subdivision] (d). . . .
[K.M.]. . . has failed to establish either that she received the twins into her home or
that she held them out ‘as [her] natural child[ren.]’ Although [K.M.] treated the
twins in all regards as though they were her own (and there can be no question but
that they are fully bonded to her as such), the children were received into the
parties’ home as [E.G.]’s children and, up until late 1999, both parties
scrupulously held confidential [petitioner]’s ‘natural,’ i.e., in this case, her genetic
relationship to the children.
“[E.G.] is not estopped by her conduct . . . . The Court finds that
[petitioner] was not misled by any such conduct; that she knew that [respondent]
did not intend thereby to confer parental rights upon her . . . .”
The Court of Appeal affirmed the judgment, ruling that K.M. did not
qualify as a parent “because substantial evidence supports the trial court’s factual
finding that only E.G. intended to bring about the birth of a child whom she
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intended to raise as her own.” The court observed that “the status of K.M. . . . is
consistent with the status of a sperm donor under the [Uniform Parentage Act],
i.e., ‘treated in law as if he were not the natural father of a child thereby
conceived.’ [Citation.]” Having concluded that the parties intended at the time of
conception that only E.G. would be the child’s mother, the court concluded that
the parties’ actions following the birth did not alter this agreement. The Court of
Appeal concluded that if the parties had changed their intentions and wanted K.M.
to be a parent, their only option was adoption.
We granted review.
DISCUSSION
K.M. asserts that she is a parent of the twins because she supplied the ova
that were fertilized in vitro and implanted in her lesbian partner, resulting in the
birth of the twins. As we will explain, we agree that K.M. is a parent of the twins
because she supplied the ova that produced the children, and Family Code section
7613, subdivision (b)2 (hereafter section 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 because K.M. supplied her ova to impregnate her lesbian
partner in order to produce children who would be raised in their joint home.3

2
Further undesignated statutory references are to the Family Code.
3
Justice Werdegar’s dissent asserts that our decision “inappropriately
confers rights and imposes disabilities on persons because of their sexual
orientation.” (Dis. opn. of Werdegar, J., post, at p. 5.) We do not. We decide
only the case before us, which involves a lesbian couple who registered as
domestic partners. We express no view regarding the rights of others and, of
course, our “opinion is not authority for a proposition not therein considered.”
(Ginns v. Savage (1964) 61 Cal.2d 520, 524, fn. 2.)
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The determination of parentage is governed by the Uniform Parentage Act
(UPA). (§ 7600 et seq.) As we observe in the companion case of Elisa B. v.
Superior Court, supra, __ Cal.4th __, __ [p. 6], the UPA defines the “ ‘[p]arent
and child relationship, [which] extends equally to every child and to every parent,
regardless of the marital status of the parents.’ (§ 7602.)”
In Johnson v. Calvert (1993) 5 Cal.4th 84, 87, we determined that a wife
whose ovum was fertilized in vitro by her husband’s sperm and implanted in a
surrogate mother was the “natural mother” of the child thus produced. We noted
that the UPA states that provisions applicable to determining a father and child
relationship shall be used to determine a mother and child relationship “insofar as
practicable.” (Johnson v. Calvert, supra, at p. 90, citing former Civ. Code,
§ 7015, now Fam. Code, § 7650.) We relied, therefore, on the provisions in the
UPA regarding presumptions of paternity and concluded that “genetic
consanguinity” could be the basis for a finding of maternity just as it is for
paternity. (Johnson v. Calvert, supra, 5 Cal.4th at p. 92; In re Marriage of
Buzzanca (1998) 61 Cal.App.4th 1410, 1415.) Under this authority, K.M.’s
genetic relationship to the children in the present case constitutes “evidence of a
mother and child relationship as contemplated by the Act. [Citations.]” (Johnson,
supra, at p. 92.)
The Court of Appeal in the present case concluded, however, that K.M. was
not a parent of the twins, despite her genetic relationship to them, because she had
the same status as a sperm donor. Section 7613(b) states: “The donor of semen
provided to a licensed physician and surgeon for use in artificial insemination of a
woman other than the donor’s wife is treated in law as if he were not the natural
father of a child thereby conceived.” In Johnson, we considered the predecessor
statute to section 7613(b), former Civil Code section 7005. (Johnson v. Calvert,
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supra, 5 Cal.4th 84, 100, fn. 14.) We did not discuss whether this statute applied
to a woman who provides ova used to impregnate another woman, but we
observed that “in a true ‘egg donation’ situation, where a woman gestates and
gives birth to a child formed from the egg of another woman with the intent to
raise the child as her own, the birth mother is the natural mother under California
law.” (Id. at p. 93, fn. 10.) We held that the statute did not apply under the
circumstances in Johnson, because the husband and wife in Johnson did not intend
to “donate” their sperm and ova to the surrogate mother, but rather “intended to
procreate a child genetically related to them by the only available means.”
(Johnson, supra, at p. 100.)
The circumstances of the present case are not identical to those in Johnson,
but they are similar in a crucial respect; both the couple in Johnson and the couple
in the present case intended to produce a child that would be raised in their own
home. In Johnson, it was clear that the married couple did not intend to “donate”
their semen and ova to the surrogate mother, but rather permitted their semen and
ova to be used to impregnate the surrogate mother in order to produce a child to be
raised by them. In the present case, K.M. contends that she did not intend to
donate her ova, but rather provided her ova so that E.G. could give birth to a child
to be raised jointly by K.M. and E.G. E.G. hotly contests this, asserting that K.M.
donated her ova to E.G., agreeing that E.G. would be the sole parent. It is
undisputed, however, that the couple lived together and that they both intended to
bring the child into their joint home. Thus, even accepting as true E.G.’s version
of the facts (which the superior court did), the present case, like Johnson, does not
present a “true ‘egg donation’ ” situation. (Johnson v. Calvert, supra, 5 Cal.4th
84, 93, fn. 10.) K.M. did not intend to simply donate her ova to E.G., but rather
provided her ova to her lesbian partner with whom she was living so that E.G.
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could give birth to a child that would be raised in their joint home. Even if we
assume that the provisions of section 7613(b) apply to women who donate ova, the
statute does not apply under the circumstances of the present case. An
examination of the history of 7613(b) supports our conclusion.
The predecessor to section 7613(b), former Civil Code section 7005, was
enacted in 1975 as part of the UPA. (Stats. 1975, ch. 1244, § 11, pp. 3197-3198.)
Section 5, subdivision (b), of the Model UPA states: “The donor of semen
provided to a licensed physician for use in artificial insemination of a married
woman other than the donor’s wife is treated in law as if he were not the natural
father of a child thereby conceived.” The comment to this portion of the model
act notes that this provision was not intended to solve all questions posed by the
use of artificial insemination: “This Act does not deal with many complex and
serious legal problems raised by the practice of artificial insemination. It was
though[t] useful, however, to single out and cover in this Act at least one fact
situation that occurs frequently.” (9B West’s. U. Laws Ann. (1987) U. Parentage
Act, com. to § 5, pp. 301-302.)
Although the predecessor to section 7613 was based upon the Model UPA,
the California Legislature made one significant change; it expanded the reach of
the provision to apply to both married and unmarried women. “Section 7005 is
derived almost verbatim from the UPA as originally drafted, with one crucial
exception. The original UPA restricts application of the nonpaternity provision of
subdivision (b) to a ‘married woman other than the donor’s wife.’ [Citation.] The
word ‘married’ is excluded from subdivision (b) of section 7005, so that in
California, subdivision (b) applies to all women, married or not. [¶] Thus, the
California Legislature has afforded unmarried as well as married women a
statutory vehicle for obtaining semen for artificial insemination without fear that
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the donor may claim paternity, and has likewise provided men with a statutory
vehicle for donating semen to married and unmarried women alike without fear of
liability for child support.” (Jhordan C. v. Mary K. (1986) 179 Cal.App.3d 386,
392, fn. omitted.)
Under the Model UPA, a man who donated semen that was used to
impregnate a woman who was married to someone other than the donor would not
be considered the father of the resulting child. But the provision would not apply,
and the semen donor would be considered the father of the child, if the woman
impregnated was unmarried. Therefore, this provision of the model act would not
apply if a man provided semen that was used to impregnate his unmarried partner
in order to produce a child that would be raised in their joint home, and the man
would be considered the father of the resulting child.
In adopting the model act, California expanded the reach of this provision
by omitting the word “married,” so that unmarried women could avail themselves
of artificial insemination. This omission was purposeful. As originally introduced
in 1975, Senate Bill No. 347 (1975-1976 Reg. Sess.) proposed adopting verbatim
the language of the model UPA and, thus, would have limited the reach of former
Civil Code section 7005 to “married women.” (Sen. Bill No. 347 (1975-1976
Reg. Sess.) § 11, as introduced Feb. 4, 1975.) On May 8, 1975, however, the bill
was amended in the Senate to delete the word “married.”4

4
The combined minutes of the May 3, 1975 and June 14, 1975 meetings of
the Committee on Family Law, which are attached to the report of the Senate
Committee on Judiciary on Senate Bill No. 347 (1975-1976 Reg. Sess.), states that
“[t]he committee recommended the deletion of ‘married’ ” in the original version
of the bill.
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It is clear, therefore, that California intended to expand the protection of the
model act to include unmarried women so that unmarried women could avail
themselves of artificial insemination. But there is nothing to indicate that
California intended to expand the reach of this provision so far that it would apply
if a man provided semen to be used to impregnate his unmarried partner in order
to produce a child that would be raised in their joint home. It would be surprising,
to say the least, to conclude that the Legislature intended such a result. The
Colorado Supreme Court considered a related issue and reached a similar
conclusion.
In In Interest of R.C. (Colo. 1989) 775 P.2d 27, 29, the Colorado Supreme
Court addressed a Colorado statute identical to section 7613(b), which applied to
both married and unmarried women. At issue were the parental rights, if any, of a
man who provided semen to a physician that was used to impregnate an unmarried
friend of the man. The man claimed that the woman had promised that he would
be treated as the child’s father. The court recognized that the Model UPA
addressed only the artificial insemination of a woman married to someone other
than the semen donor, adding that the parental rights of a semen donor are “least
clearly understood when the semen donor is known and the recipient is
unmarried.” (R.C., supra, 775 P.2d at pp. 31, 33-34.) The court concluded that
the statute did not apply when a man donated semen to an unmarried woman with
the understanding that he would be the father of the resulting child: “[W]e
conclude that the General Assembly neither considered nor intended to affect the
rights of known donors who gave their semen to unmarried women for use in
artificial insemination with the agreement that the donor would be the father of
any child so conceived. [The statute] simply does not apply in that circumstance.”
(Id. at p. 35.)
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The Colorado Supreme Court was thus faced with a situation in which a
man provided semen, through a physician, to an unmarried “friend” who allegedly
had promised that the man would be the father of the resulting child. The court
concluded that the Model UPA, and the Colorado statute based upon it, were not
intended to apply to such circumstances. We are faced with an even more
compelling situation, because K.M. and E.G. were more than “friends” when K.M.
provided her ova, through a physician, to be used to impregnate E.G.; they lived
together and were registered domestic partners. Although the parties dispute
whether both women were intended to be parents of the resulting child, it is
undisputed that they intended that the resulting child would be raised in their joint
home. Neither the Model UPA, nor section 7613(b) was intended to apply under
such circumstances.5
As noted above, K.M.’s genetic relationship with the twins constitutes
evidence of a mother and child relationship under the UPA (Johnson v. Calvert,
supra, 5 Cal.4th 84, 92) and, as explained above, section 7613(b) does not apply
to exclude K.M. as a parent of the twins. The circumstance that E.G. gave birth to
the twins also constitutes evidence of a mother and child relationship. (Johnson v.
Calvert, supra, 5 Cal.4th at p. 92.) Thus, both K.M. and E.G. are mothers of the
twins under the UPA.6

5
The Court of Appeal in Steven S. v. Deborah D. (2005) 127 Cal.App.4th
319, 326, held that section 7613(b) applied where the semen donor was known to
the impregnated woman and they had had a sexual relationship. But the semen
donor in that case did not live with the impregnated woman, so the court did not
address whether the statute would apply if the child was to be raised in the semen
donor’s home.
6
Contrary to the suggestion in Justice Werdegar’s dissent (dis. opn. of
Werdegar, J., post, at pp. 7, 10), we do not consider whether it is in the twins’ best
interest for the woman who supplied the ova from which they were produced,
(Footnote continued on next page.)
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It is true we said in Johnson that “for any child California law recognizes
only one natural mother.” (Johnson v. Calvert, supra, 5 Cal.4th 84, 92.) But as
we explain in the companion case of Elisa B. v. Superior Court, supra, ___
Cal.4th ___, ___ [p. 10] this statement in Johnson must be understood in light of
the issue presented in that case; “our decision in Johnson does not preclude a child
from having two parents both of whom are women.”
Justice Werdegar’s dissent argues that we should determine whether K.M.
is a parent using the “intent test” we developed in Johnson v. Calvert, supra, 5
Cal.4th 84. In Johnson, an embryo created using the sperm and egg of a married
couple was implanted in a surrogate mother. It was undisputed that the husband
was the father of the resulting child, but the wife and the surrogate both claimed to
be the mother. We recognized that both women “have adduced evidence of a
mother and child relationship” under the UPA—the wife because she is
genetically related to the child and the surrogate because she gave birth to the
child—but we rejected the suggestion that, under the circumstances of that case,
the child could have two mothers, leaving the child with three parents. (Id. at p.
92, fn. 8.) In order to determine which woman was the child’s sole mother under
the UPA, we looked to their respective intents: “Because two women each have
presented acceptable proof of maternity, we do not believe this case can be
decided without enquiring into the parties’ intentions . . . .” (Id. at p. 93.)
As the dissent acknowledges, a child can have two mothers. Thus, this case
differs from Johnson in that both K.M. and E.G. can be the children’s mothers.

(Footnote continued from previous page.)

intending to raise the children in her home, to be declared their natural mother.
We simply follow the dictates of the UPA.
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Unlike in Johnson, their parental claims are not mutually exclusive. K.M.
acknowledges that E.G. is the twins’ mother. K.M. does not claim to be the twins’
mother instead of E.G., but in addition to E.G., so we need not consider their
intent in order to decide between them. (In re Marriage of Moschetta (1994) 25
Cal.App.4th 1218, 1224 [Johnson intent test does not apply when “[t]here is no
‘tie’ to break.”].) Rather, the parentage of the twins is determined by application
of the UPA. E.G. is the twins’ mother because she gave birth to them and K.M.
also is the twins’ mother because she provided the ova from which they were
produced.
Justice Werdegar’s dissent claims that we are “changing the law” by
creating a “new rule” for determining whether a woman who supplies an ovum is
the mother of the resulting child. (Dis. opn. of Werdegar, J., post, at p. 3.) We are
not. Nothing in Johnson suggests that the intent test applies in cases not involving
surrogacy agreements, and the dissent agrees that the linchpin of the decision in
Johnson — that a child cannot have two mothers — does not apply here. (Id. at p.
1.) We simply hold that section 7613(b), which creates an exception to the usual
rules governing parentage that applies when a man donates semen to inseminate a
woman who is not his wife, does not apply under the circumstances of this case in
which K.M. supplied ova to impregnate her lesbian partner in order to produce
children who would be raised in their joint home. Because the exception provided
in section 7613(b) does not apply, K.M.’s parentage is determined by the usual
provisions of the UPA. As noted above, under the UPA, K.M.’s genetic
relationship to the twins constitutes “evidence of a mother and child relationship.”
(Johnson v. Calvert, supra, 5 Cal. 4th 84, 92.)
It would be unwise to expand application of the Johnson intent test as
suggested by Justice Werdegar’s dissent beyond the circumstances presented in
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Johnson. Usually, whether there is evidence of a parent and child relationship
under the UPA does not depend upon the intent of the parent. For example, a man
who engages in sexual intercourse with a woman who assures him, falsely, that
she is incapable of conceiving children is the father of a resulting child, despite his
lack of intent to become a father.
Justice Werdegar’s dissent states that predictability in this area is important,
but relying upon a later judicial determination of the intent of the parties, as the
dissent suggests, would not provide such predictability. The present case is a good
example. Justice Werdegar’s dissent concludes that K.M. did not intend to
become a parent, because the superior court “found on the basis of conflicting
evidence that she did not,” noting that “[w]e must defer to the trial court’s findings
on this point because substantial evidence supports them.” (Dis. opn. of
Werdegar, J., post, at pp. 2-3.) Had the superior court reached the opposite
conclusion, however, the dissent presumably again would defer to the trial court’s
findings and reach the opposite conclusion that K.M. is a parent of the twins.
Rather than provide predictability, therefore, using the intent test would rest the
determination of parentage upon a later judicial determination of intent made years
after the birth of the child.
Justice Werdegar’s dissent cites Troxel v. Granville (2000) 530 U.S. 57, 65
for the proposition that “We cannot recognize K.M. as a parent without
diminishing E.G.’s existing parental rights.” (Dis. opn. of Werdegar, J., post, at
p. 8.) The high court’s decision in Troxel has no application here. Neither K.M.’s
nor E.G.’s claim to parentage preceded the other’s. K.M.’s claim to be the twins’
mother because the twins were produced from her ova is equal to, and arose at the
same time as, E.G.’s claim to be the twins’ mother because she gave birth to them.
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The superior court in the present case found that K.M. signed a waiver
form, thereby “relinquishing and waiving all rights to claim legal parentage of any
children who might result.” But such a waiver does not affect our determination
of parentage. Section 7632 provides: “Regardless of its terms, an agreement
between an alleged or presumed father and the mother or child does not bar an
action under this chapter.” (See In re Marriage of Buzzanca, supra, 61
Cal.App.4th 1410, 1426 [“It is well established that parents cannot, by agreement,
limit or abrogate a child’s right to support.” (Fn. omitted.)].) A woman who
supplies ova to be used to impregnate her lesbian partner, with the understanding
that the resulting child will be raised in their joint home, cannot waive her
responsibility to support that child. Nor can such a purported waiver effectively
cause that woman to relinquish her parental rights.
In light of our conclusion that section 7613(b) does not apply and that K.M.
is the twins’ parent (together with E.G.), based upon K.M.’s genetic relationship to
the twins, we need not, and do not, consider whether K.M. is presumed to be a
parent of the twins under section 7611, subdivision (d), which provides that a man
is presumed to be a child’s father if “[h]e receives the child into his home and
openly holds out the child as his natural child.”
DISPOSITION
The judgment of the Court of Appeal is reversed.
MORENO, J.
WE CONCUR: GEORGE, C. J.
BAXTER,
J.
CHIN,
J.
17

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DISSENTING OPINION BY KENNARD, J.
Unlike the majority, I would apply the controlling statutes as written. The
statutory scheme for determining parentage contains two provisions that resolve
K.M.’s claim to be a parent of the twins born to E.G. Under one provision, a man
who donates sperm for physician-assisted artificial insemination of a woman to
whom he is not married is not the father of the resulting child. (Fam. Code,
§ 7613, subd. (b).)1 Under the other provision, rules for determining fatherhood
are to be used for determining motherhood “[i]nsofar as practical.” (Id., § 7650.)
Because K.M. donated her ova for physician-assisted artificial insemination and
implantation in another woman, and knowingly and voluntarily signed a document
declaring her intention not to become a parent of any resulting children, she is not
a parent of the twins.
I.
In 1994, K.M. and E.G. began living together as a couple, and some months
later they registered as domestic partners. E.G. had long wanted to become a
mother but had been unsuccessful in conceiving. She eventually pursued in vitro
fertilization, but her body failed to produce sufficient ova. Her physician then
suggested that she obtain ova from K.M., her partner. K.M. orally agreed that she
would donate ova, and that E.G. would be the only parent of any resulting child
unless K.M. were later to become a parent through a formal second-parent
adoption. K.M. evidenced her intent that E.G. was to be the sole parent by signing

1
All further statutory references are to the Family Code.
1

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the ova donor form, which provided that she renounced any claim to her donated
ova, a fetus, or a child born from her ova.
K.M. donated her ova, which were fertilized with sperm from an
anonymous donor and implanted in E.G., who ultimately gave birth to twin girls.
The twins lived with the couple for five years. After the couple separated, K.M.
petitioned the superior court for establishment of a parental relationship with the
twins, and for rights to custody and visitation.
After a week-long hearing, at which considerable evidence was presented,
the superior court dismissed K.M.’s parentage action. Describing K.M.’s
testimony about her misunderstanding of the ova donor form as “not always
credible,” the trial court found that K.M. and E.G. had agreed “prior to the
conception of the children” that E.G. would be their only parent. The court
observed that E.G.’s intent to be the sole parent “responsible for the support and
maintenance of any children born” of the ova implanted in her uterus was
evidenced when she signed the ova recipient form acknowledging that the
“children produced” by the in vitro fertilization procedure would be her children
“with all the rights and privileges accompanying such status.” The court also
noted that K.M. had failed to show that she had no choice but to sign the standard
form provided by the in vitro fertilization clinic, and that she could not have
donated her ova under a different agreement in which she was “designated” as “an
intended parent” of any child born to E.G. Hence it ruled that K.M. had
voluntarily relinquished any claim to being a mother of any children born to E.G.
The court further ruled that K.M. did not meet the statutory definition of a
“presumed” mother (§ 7611, subd. (d); Elisa B. v. Superior Court (Aug. 22, 2005,
S125912) ___ Cal.4th ___, ___ [p. 19] (Elisa B.)), because she had failed to meet
both prongs of the statutory test: receiving the children into her home, and holding
2

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them out as her natural children. Although K.M. had received the twins into her
home, she had not held them out as her natural children;2 indeed she had not
disclosed to others “her genetic connection” to the twins until 1999, when the
couple’s relationship began to falter.
The Court of Appeal affirmed the trial court.
II.
The Court of Appeal held that K.M. had made a voluntary and informed
choice to donate her ova to E.G., and that K.M.’s status with respect to any child
born as a result of the ova donation was analogous to that of a sperm donor, who,
by statute, is treated as if he were not the natural father of any child conceived as a
result of the sperm donation. “The donor of semen provided to a licensed
physician and surgeon for use in artificial insemination of a woman other than the
donor’s wife is treated in law as if he were not the natural father of a child thereby
conceived.” (§ 7613, subd. (b).) By analogy I would apply that statute here.
Section 7650 states that “[i]nsofar as is practicable” the provisions “applicable” to
a father and child relationship are to be used to determine a mother and child
relationship.
Here it is “practicable” to treat a woman who donates ova to a licensed
physician for in vitro fertilization and implantation in another woman,3 in the

2
This case is factually distinguishable from the companion case of Elisa B.
because here K.M. did not, by her behavior after their birth, meet the statutory test
triggering the presumption (§ 7611, subd. (d)) that she was a presumed mother of
the twins. (Elisa B., supra, ___ Cal.4th at pp. __-__ [pp. 11-15].)
3
K.M. and E.G. were registered in San Francisco as domestic partners in
1995 at the time of the twins’ birth. On March 30, 2001, E.G. filed a notice with
the Clerk of the City and County of San Francisco dissolving the domestic
partnership. As of January 1, 2005, domestic partners who are registered with the
(Footnote continued on next page.)
3

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same fashion as a man who donates sperm to a licensed physician for artificial
insemination of a woman to whom he is not married. Treating male and female
donors alike is not only practicable, but it is also consistent with the trial court’s
factual finding here that K.M. intended “to donate ova to E.G.” so that E.G. would
be the sole mother of a child born to her.
As the majority here explains, California’s Legislature has drafted the
sperm donor statute in such a way as to allow unmarried women to use artificial
insemination to conceive, and to permit them to become the sole parent of any
child so conceived, if they use sperm that the donor has provided to a licensed
physician. (Maj. opn., ante, at pp. 10-11.) Here, E.G. used sperm donated in that
fashion, ensuring that the sperm donor would have no claim of fatherhood to any
child to whom she gave birth. This she was entitled to do under California law.
(Jhordan C. v. Mary K. (1986) 179 Cal.App.3d 386, 392.)
I recognize that California law does not expressly address the maternal
status of ova donors. But, as I have explained in the past, the Uniform Parentage
Act, as codified in our Family Code, remains “the only statutory guidance this
court has in resolving this case.” (Johnson v. Calvert (1993) 5 Cal.4th 84, 112
(dis. opn. of Kennard, J.) (Johnson).) Accordingly, as I said earlier, I would apply
the sperm donor statute to women who donate their ova in compliance with
section 7613, subdivision (b). As the trial court here explained: K.M.’s “position
was analogous to that of a sperm donor, who is treated as a legal stranger to the

(Footnote continued from previous page.)

California Secretary of State have the same “rights and obligations” to “a child of
either of them” as do spouses. (§ 297.5, subd. (d).) Obviously, this new statute
has no application here.
4

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child if he donates sperm through a licensed physician and surgeon.” Like the trial
court, I see “no reason to treat ovum donors as having greater claims to parentage
than sperm donors.”
The analogy between sperm and ova donors is not new. Indeed, in
Johnson, supra, 5 Cal.4th page 93, footnote 10, this court signalled its view that
an ova donor would not be treated as the child’s mother. Johnson held that “in a
true ‘egg donation’ situation, where a woman gestates and gives birth to a child
formed from the egg of another women with the intent to raise the child as her
own, the birth mother is the natural mother under California law.” (Ibid.) Nearly
two years after that decision, E.G. in this case undertook in vitro fertilization with
ova from K.M.
In the 12 years since this court’s decision in Johnson, supra 5 Cal.4th 84,
an unknown number of Californians have made procreative choices in reliance on
it. For example, in the companion case of Kristine H. v. Lisa R. (Aug. 22, 2005,
S126945) ___ Cal.4th ___, ___ [p. 2] a lesbian couple obtained a prebirth
stipulated judgment declaring them to be “the joint intended legal parents” of the
child born to one of them (italics added), language they presumably used in order
to bring themselves within Johnson where the preconception intent to be come a
parent is the determinative inquiry. (Johnson, supra, 5 Cal.4th at p. 93.) We do
know that prebirth judgments of parentage on behalf of the nonbiologically related
partner of a child’s biological parent have been entered in this state, and that such
judgments were touted to same-sex couples as less expensive and time consuming
than second parent adoption. (Doskow, The Second Parent Trap: Parenting For
Same-Sex Couples in a Brave New World (1999) 20 J. Juv. L. 1, 21, fns. 117 &
118 [citing judgments entered in San Francisco, Los Angeles, and San Luis
Obispo Counties]; see also Mak, Partners in Law, 24 L. A. Law. (July-Aug. 2001)
5

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35, 38, 40.) How will today’s majority holding affect the validity of the various
procreative choices made in reliance on Johnson? The majority’s decision offers
no answers.
The majority’s desire to give the twins a second parent is understandable
and laudable. To achieve that worthy goal, however, the majority must rewrite a
statute and disregard the intentions that the parties expressed when the twins were
conceived. The majority amends the sperm-donor statute by inserting a new
provision making a sperm donor the legal father of a child born to a woman
artificially inseminated with his sperm whenever the sperm donor and the birth
mother “intended that the resulting child would be raised in their joint home,”
even though both the donor and birth mother also intended that the donor not be
the child’s father. (Maj. opn., ante, at p. 13, italics added.) Finding nothing in the
statutory language or history to support this construction, I reject it. Relying on
the plain meaning of the statutory language, and the trial court’s findings that both
K.M. and E.G. intended that E.G. would be the only parent of any children
resulting from the artificial insemination, I would affirm the judgment of the Court
of Appeal, which in turn affirmed the trial court, rejecting K.M.’s claim to
parentage of the twins born to E.G.
KENNARD,
J.
6

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DISSENTING OPINION BY WERDEGAR, J.
The majority determines that the twins who developed from the ova K.M.
donated to E.G. have two mothers rather than one. While I disagree, as I shall
explain, with that ultimate conclusion, I agree with the majority’s premise that a
child can have two mothers. Our previous holding that “for any child California
law recognizes only one natural mother” (Johnson v. Calvert (1993) 5 Cal.4th 84,
92 (Johnson)) must be understood in the context in which it arose—a married
couple who intended to become parents and provided their fertilized ova to a
gestational surrogate who did not intend to become a parent—and, thus
understood, may properly be limited to cases in which to recognize a second
mother would inject an unwanted third parent into an existing family. When, in
contrast to Johnson, no natural1 or adoptive father exists, two women who intend
to become mothers of the same child may do so either through adoption (Sharon S.
v. Superior Court (2003) 31 Cal.4th 417) or because both qualify as natural
mothers under the Uniform Parentage Act (Fam. Code, § 7600 et seq.) (UPA), one
having donated the ovum and the other having given birth (see Johnson, at p. 92).
While scientific advances in reproductive technology now afford
individuals previously unimagined opportunities to become parents, the same

1
As when an unmarried woman becomes pregnant through physician-
assisted artificial insemination pursuant to Family Code section 7613, subdivision
(b).
1

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advances have also created novel, sometimes heartbreaking issues concerning the
identification of the resulting children’s legal parents. Declarations of parentage
in this context implicate complex and delicate biological, personal, legal and
social policy considerations. For these reasons, courts have sought above all to
avoid foreseeable disputes over parentage with rules that provide predictability by
permitting the various persons who must cooperate to bring children into the
world through assisted reproduction to determine in advance who will and will not
be parents, based on their expressed and voluntarily chosen intentions. (See, e.g.,
Johnson, supra, 5 Cal.4th 84, 93-95.)
Precisely because predictability in this area is so important, I cannot agree
with the majority that the children in this case do in fact have two mothers. Until
today, when one woman has provided the ova and another has given birth, the
established rule for determining disputed claims to motherhood was clear: we
looked to the intent of the parties. “[I]n a true ‘egg donation’ situation, where a
woman gestates and gives birth to a child formed from the egg of another woman
with the intent to raise the child as her own, the birth mother is the natural mother
under California law.” (Johnson, supra, 5 Cal.4th 84, 93, fn. 10.) Contrary to the
majority’s apparent assumption, to limit Johnson’s holding that a child can have
only one mother to cases involving existing two-parent families does not require
us to abandon Johnson’s intent test as the method for determining disputed claims
of motherhood arising from the use of reproductive technology. Indeed, we have
no other test sufficient to the task.
Furthermore, to apply Johnson’s intent test to the facts of this case
necessarily leads to the conclusion that E.G. is a mother and K.M. is not. That
E.G. intended to become the mother—and the only mother—of the children to
whom she gave birth is unquestioned. Whether K.M. for her part also intended to
2

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become the children’s mother was disputed, but the trial court found on the basis
of conflicting evidence that she did not. We must defer to the trial court’s findings
on this point because substantial evidence supports them. K.M. represented in
connection with the ovum donation process, both orally and in writing, that she
did not intend to become the children’s mother, and consistently with those
representations subsequently held the children out to the world as E.G.’s but not
her own. Thus constrained by the facts, the majority can justify its conclusion that
K.M. is also the children’s mother only by changing the law. This the majority
does by displacing Johnson’s intent test—at least for the purposes of this case—
with the following new rule: a woman who has “supplied her ova to impregnate
her lesbian partner in order to produce children who would be raised in their joint
home” (maj. opn., ante, at p. 7; see also id., at pp. 1, 9, 13, 15, 17) is a mother of
the resulting children regardless of any preconception manifestations of intent to
the contrary.
I find the majority’s reasons for not applying the Johnson intent test
unpersuasive. The majority criticizes the test as basing “the determination of
parentage upon a later judicial determination of intent made years after the birth of
the child.” (Maj. opn., ante, at p. 16.) But the task of determining the intent of
persons who have undertaken assisted reproduction is not fundamentally different
than the task of determining intent in the context of disputes involving contract,
tort or criminal law, something courts have done satisfactorily for centuries. The
expectation that courts will in most cases accurately decide factual issues such as
intent is one of the fundamental premises of our judicial system. Indeed, the
majority itself expresses willingness to continue applying the Johnson intent test
to determine whether gestational surrogacy agreements are enforceable. This
position leaves no plausible basis for refusing to apply the same test to determine
3

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whether ovum donation agreements are enforceable. Ovum donation and
gestational surrogacy agreements are two sides of the same coin; each involves an
ovum provider, a gestator, and an agreement about who will become the parent or
parents of any resulting offspring. Indeed, when two women divide in this way
the genetic and gestational components of motherhood, only an examination of
their intent permits us to determine whether we are dealing with an ovum donation
agreement, a gestational surrogacy agreement, or neither. If courts can perform
one of these tasks acceptably, they can also perform the other.2
No more persuasive is the majority’s suggestion that to respect the formally
expressed intent of the parties to an ovum donation agreement is prohibited by the
rule that parental obligations may not be waived by contract. (Maj. opn., ante, at
pp. 16-17.) We expressly rejected a similar argument directed against a
gestational surrogacy agreement in Johnson, supra, 5 Cal.4th 84, 95-97. Certainly
parental obligations may not be waived by contract. (Fam. Code, § 7632.) But
Johnson’s intent test does not enforce ovum donation and gestational surrogacy
agreements; it merely directs courts to consider such documents, along with all
other relevant evidence, in determining preconception intent.
As a final reason for rejecting the intent test, the majority suggests that to
apply the test outside the context of Johnson might shield from the obligations of
fatherhood, contrary to existing law, a man who, lacking the intent to become a
father, “engages in sexual intercourse with a woman who assures him, falsely, that

2
Having alternately embraced and criticized intent tests, the majority
ironically concludes by making intent part of its own new test for parentage. That
new test appears to require courts to determine whether the donor and recipient
intended any offspring to be raised in their joint home. (See maj. opn., ante, at
pp. 1, 7, 9, 15, 17.)
4

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she is incapable of conceiving children . . . .” (Maj. opn., ante, at p. 15.) But no
one, to my knowledge, proposes to apply the intent test to determine the parentage
of children conceived through ordinary sexual reproduction. This court adopted
the intent test to resolve cases of assisted reproduction in which disputes over
motherhood arise because one woman has provided the ova and another has
gestated them. Both Johnson, supra, 5 Cal.4th 84, and the case before us belong
to that category. Although the majority may be correct in asserting that “[u]sually,
whether there is evidence of a parent and child relationship under the UPA does
not depend upon the intent of the parent” (maj. opn., ante, at p. 15), we adopted
the intent test precisely because the UPA does not expressly resolve conflicting
claims to motherhood arising from ovum transplants. The majority’s speculation
about men who engage in sexual activity despite mental reservations about
fatherhood is irrelevant.
The new rule the majority substitutes for the intent test entails serious
problems. First, the rule inappropriately confers rights and imposes disabilities on
persons because of their sexual orientation. In a standard ovum donation
agreement, such as the agreement between K.M. and E.G., the donor confirms her
intention to assist another woman to become a parent without the donor becoming
a parent herself. The majority’s rule vitiates such agreements when its conditions
are satisfied—conditions that include the fact the parties to the agreement are
lesbian. Although the majority denies that its rule depends on sexual orientation
(maj. opn., ante, at p. 7, fn. 3), the opinion speaks for itself. The majority has
chosen to use the term “lesbian” no less than six times in articulating its holding.
(Id., at pp. 1, 7, 7, fn. 3, 9, 15, 17.) Moreover, the majority prevents future courts
from applying its holding automatically to persons other than lesbians by stating
that it “decide[s] only the case before us, which involves a lesbian couple who
5

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registered as domestic partners.” (Id., at p. 7, fn. 3.) I see no rational basis—and
the majority articulates none—for permitting the enforceability of an ovum
donation agreement to depend on the sexual orientation of the parties. Indeed,
lacking a rational basis, the rule may well violate equal protection. (See Romer v.
Evans (1996) 517 U.S. 620, 631-636; Gay Law Students Assn. v. Pacific Tel. &
Tel. Co. (1979) 24 Cal.3d 458, 467-475.) Why should a lesbian not have the same
right as other women to donate ova without becoming a mother, or to accept a
donation of ova without accepting the donor as a coparent, even if the donor and
recipient live together and both plan to help raise the child?3
Having created a new rule to decide certain cases of disputed parentage
arising from assisted reproduction, the majority seeks through various means to
limit the number of cases to which the new rule will apply. Through this effort,
the majority creates more problems than it solves.
Although the majority at one point seems to suggest that its holding applies
only to persons who have registered as domestic partners (maj. opn., ante, at p. 7,
fn. 3), it elsewhere articulates its holding without reference to domestic
partnership. (Id., at pp. 1, 7, 9, 15, 17.) The resulting ambiguity flags a serious
problem. K.M. and E.G. registered as domestic partners in October 1994 and
terminated their domestic partnership in March 2001. Not until January 1, 2003,
however, did California law give domestic partners rights and responsibilities with
respect to each others’ children. (Fam. Code, § 297.5, subd. (d), added by Stats.
2003, ch. 421, eff. Jan. 1, 2005.) The new law expressly does not apply to persons

3
That the majority’s rule expressly applies only to lesbians creates the
additional problem of requiring a formal, legal definition of “lesbian.” Unless we
are willing to adopt such a definition and to authorize courts to inquire into the
private facts necessary to apply it, the rule is likely unworkable.
6

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like K.M. and E.G., who terminated their domestic partnerships before January 1,
2005. (Id., § 299.3, subd. (a).) For the majority to base its holding, even in part,
on K.M.’s and E.G.’s domestic partnership is to hold, contrary to statute and
apparent legislative intent, that domestic partnership under prior laws did affect
parental rights and obligations.
Other problems arise from the majority’s attempt to limit its holding to
cases in which the ovum donor and birth mother intend to raise the children
together. Except in the context of the majority’s new rule, a person’s
preconception intent to participate in raising a child has no relevance to the
determination of natural parentage. The duty to raise children (by personal care or
through payment of child support) is imposed by law regardless of the parents’
intent or wishes. Many persons who become parents do not intend to raise
children (e.g., casual inseminators and parents who abandon their babies) and,
conversely, many people intend to raise children without becoming parents (e.g.,
nannies and some stepparents and grandparents). To make the determination of
natural parentage rest in part on the intent to raise a child injects into that
determination a best interests factor—something we have previously refused to do.
(Johnson, supra, 5 Cal.4th 84, 93, fn. 10.) I realize the court in Johnson wrote
that “she who intended to procreate the child—that is, she who intended to bring
about the birth of a child that she intended to raise as her own—is the natural
mother under California law.” (Id., at p. 93.) But the phrase “raise as her own”
(ibid., italics added) in that context did not refer simply to providing childcare;
instead, it meant that the woman in question intended to be a parent—to raise a
child of her own. In no sense did the Johnson court base its decision of parentage
on the question of who would provide childcare. By analogy, Family Code
section 7611, subdivision (d), which creates the presumption that a man who
7

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“receives [a] child into his home and openly holds out the child as his natural
child” is not satisfied simply because a man receives the child into his home; to
become a presumed father he must also hold out the child as his natural child.
Perhaps the most serious problem with the majority’s new rule is that it
threatens to destabilize ovum donation and gestational surrogacy agreements. One
important function of Johnson’s intent test was to permit persons who made use of
reproductive technology to create, before conception, settled and enforceable
expectations about who would and would not become parents. Johnson, supra, 5
Cal.4th 84, thus gave E.G. a right at the time she conceived to expect that she
alone would be the parent of her children—a right the majority now
retrospectively abrogates. E.G.’s expectation has a constitutional dimension. (See
Troxel v. Granville (2000) 530 U.S. 57, 65 [due process clause protects a parent’s
fundamental right to make decisions concerning the care, custody and control of
her children].) We cannot recognize K.M. as a parent without diminishing E.G.’s
existing parental rights. In light of the majority’s abrogation of Johnson and
apparent willingness to ignore preconception manifestations of intent, at least in
some cases, women who wish to donate ova without becoming mothers, serve as
gestational surrogates without becoming mothers, or accept ovum donations
without also accepting the donor as a coparent would be well advised to proceed
with the most extreme caution. While the majority purports to limit its holding to
cohabiting lesbians, and possibly only to those cohabiting lesbians who are also
domestic partners, these limitations, as I have explained, rest on questionable legal
grounds and may well not stand the test of time.
I find the majority’s extensive discussion of Family Code section 7613,
subdivision (b), irrelevant and illogical. The statute provides that “[t]he donor of
semen provided to a licensed physician and surgeon for use in artificial
8

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insemination of a woman other than the donor’s wife is treated in law as if he were
not the natural father of a child thereby conceived.” The majority concludes the
statute does not apply to the case before us. I agree. Although provisions of the
UPA that determine the father and child relationship apply “[i]nsofar as
practicable” (Fam. Code, § 7650) to determine the mother and child relationship,
the act’s drafters did not contemplate that all provisions concerning fatherhood
would be construed as affecting motherhood. Indeed, the drafters considered it
“obvious that certain provisions [of the act] would not apply in an action to
establish the mother and child relationship” and expressly left to courts the
decision of which provisions should apply. (9B West’s U. Laws Ann. (2001) U.
Parentage Act (1973) com. to § 21, p. 494.) That the statute governing sperm
donations (Fam. Code, § 7613, subd. (b)) was not intended to govern ovum
donations is easy to conclude since the act was drafted in 1973, long before
assisted reproduction and gestational surrogacy became commonplace. (9B
West’s U. Laws Ann., supra, U. Parentage Act (2000) Prefatory Note, p. 297.)
The drafters’ response to these scientific developments has not been to endorse a
counter-textual reading of the provision governing sperm donation, but instead to
withdraw the 1973 act entirely and replace it with a new act expressly addressing
some of the issues that have arisen from the use of reproductive technology. (9B
West’s U. Laws Ann, supra, U. Parentage Act (2000) p. 303 et seq.) In short,
Family Code section 7613, subdivision (b), has nothing to do with this case.
The majority seems to believe that, having concluded the sperm donation
statute (Fam. Code, § 7613, subd. (b)) does not apply, one must necessarily
conclude that K.M. is the mother of the children who developed from the ova she
donated to E.G. This reasoning entails a non sequitur. The statute, when it
applies, merely excludes someone as a possible parent; it does not establish
9

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parentage. In order to reach the further conclusion that K.M. is a parent, the
majority must entertain a string of questionable assumptions: first, that we would
refuse to apply the sperm donation statute (Fam. Code, § 7613, subd. (b), quoted
ante, at p. 8), despite its plain language, to cut off the parental rights and
responsibilities of a man who donates his sperm through a physician to a woman
who is not his wife but with whom he lives (maj. opn., ante, at pp. 11-13), and,
second, that two women who live together and divide between themselves the
genetic and gestational aspects of pregnancy must be treated in exactly the same
way as the man and woman just posited (id., at p. 13). The latter assumption, in
turn, embodies additional, unstated assumptions about the effect of the equal
protection clause. But ovum donation, which requires substantial medical and
scientific assistance, is not sufficiently like sperm donation, which can easily be
accomplished by unassisted laypersons, to require equal treatment under the law
for all purposes. Accordingly, to recognize the sperm donation statute’s
inapplicability does not dispose of this case; it merely leaves us with the same
question with which we began, namely, whether K.M. is a second mother of
E.G.’s children. Until today, the Johnson intent test would have required us to
answer the question in the negative. In my view, it still should.
Perhaps the best way to understand today’s decision is that we appear to be
moving in cases of assisted reproduction from a categorical determination of
parentage based on formal, preconception manifestations of intent to a case-by-
case approach implicitly motivated at least in part by our intuitions about the
children’s best interests. We expressly eschewed a best interests approach in
Johnson, supra, 5 Cal.4th 84, explaining that it “raises the repugnant specter of
governmental interference in matters implicating our most fundamental notions of
privacy, and confuses concepts of parentage and custody.” (Id., at p. 93, fn. 10.)
10

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This case, in which the majority compels E.G. to accept K.M. as an unintended
parent to E.G.’s children, in part because of E.G.’s and K.M.’s sexual orientation
and the character of their private relationship, shows that Johnson’s warning was
prescient. Only legislation defining parentage in the context of assisted
reproduction is likely to restore predictability and prevent further lapses into the
disorder of ad hoc adjudication.
WERDEGAR, J.
11

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See last page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion K.M. v. E.G.
__________________________________________________________________________________

Unpublished Opinion

Original Appeal
Original Proceeding
Review Granted XXX 118 Cal.App.4th 477
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S125643
Date Filed: August 22, 2005

__________________________________________________________________________________

Court: Superior
County: Marin
Judge: Randolph E. Heubach, Commissioner

__________________________________________________________________________________

Attorneys for Appellant:

Hersh Family Law Practice, Jill Hersh, Jenny Wald and Stephanie Wald for Plaintiff and Appellant.

Shannon Minter, Courtney Joslin; Jennifer C. Pizer and Amber Garza for Children of Lesbians and Gays
Everywhere, Equality California, Family Matters, Family Pride Coalition, Growing Generations, Lambda
Legal Defense and Education Fund, the National Center for Lesbian Rights, Our Family Coalition, the Pop
Luck Club and Southern California Assisted Reproduction Attorneys as Amici Curiae on behalf of Plaintiff
and Appellant.

Debra Back Marley and Robert C. Fellmeth for Children’s Advocacy Institute as Amicus Curiae on behalf
of Plaintiff and Appellant.

ACLU Foundation of Southern California, Clare Pastore, Christine Sun; ACLU Foundation of Northern
California, Alan Schlosser; ACLU Foundation of San Diego and Imperial Counties, Jordan Budd, Elvira
Cacciavillani; ACLU Foundation Lesbian and Gay Rights Project and James Esseks for the American Civil
Liberties Union of Southern California, the American Civil Liberties Union of Northern California, the
American Civil Liberties Union of San Diego and Imperial Counties and the American Civil Liberties
Union as Amici Curiae on behalf of Plaintiff and Appellant.

Maxie Rheinheimer Stephens & Vrevich, Darin L. Wessel; Laura J. Maechtlen; and Vanessa H. Eisemann
for Tom Homann Law Association, Bay Area Lawyers for Individual Freedom, Lesbian and Gay Lawyers
Association of Los Angeles, and Sacramento Lawyers for the Equality of Gays and Lesbians as Amici
Curiae on behalf of Plaintiff and Appellant.

Alice Bussiere for The Center for Children’s Rights at Whittier Law School, The Legal Aid Foundation of
Los Angeles, The National Center for Youth Law, The Youth Law Center and Joan Heifetz Hollinger and
the Children’s Advocacy Project, Boalt Hall as Amici Curiae on behalf of Plaintiff and Appellant.

1

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Page 2 – counsel continued – S125643

Attorneys for Respondent:

Sideman & Bancroft and Diana E. Richmond for Defendant and Respondent.

Liberty Counsel, Mathew D. Staver, Rena M. Lindevaldsen and Mary E. McAlister for Kristina Sica as
Amicus Curiae on behalf of Defendant and Respondent.

Marvin R. Ventrell; Donna Wickham Furth; Wilke, Fleury, Hoffelt, Gould & Birney and William A.
Gould, Jr., for Northern California Association of Counsel for Children, National Association of Counsel
for Children and The California Psychological Association as Amici Curiae on behalf of Minors.

Geragos & Geragos, Gregory R. Ellis; and Rebekah A. Frye for The Los Angeles County Bar Association,
The San Fernando Valley Bar Association and its Family Law Center, The Family Law Section of the
Beverly Hills Bar Association, The Bar Association of San Francisco, The Association of Certified Law
Specialists and Women Lawyers Association of Los Angeles as Amici Curiae on behalf of Minors.

Morrison & Foerster, Ruth N. Borenstein and Johnathan E. Mansfield for California NOW, Inc., and
California Women’s Law Center as Amici Curiae.


2

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Counsel who argued in Supreme Court (not intended for publication with opinion):

Jill Hersh
Hersh Family Law Practice
One Maritime Plaza, Suite 1040
San Francisco, CA 94111
(415) 788-2200

Diana E. Richmond
Sideman & Bancroft
One Embarcadero Center, 8th Floor
San Francisco, CA 94111
(415) 392-1960
3

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Opinion Information

Date:	Docket Number:
Mon, 08/22/2005	S125643

Disposition
Aug 22 2005	Opinion: Reversed

Dockets
Jun 18 2004	Petition for review filed   By counsel for appellant {K.M.}.
Jun 18 2004	Record requested
Jun 21 2004	Received:   Filing fee.
Jun 23 2004	Received Court of Appeal record   file jacket/briefs/appendices/accordian file
Jul 7 2004	Answer to petition for review filed   by counsel for Defendant and Respondent E.G.
Jul 16 2004	Reply to answer to petition filed   by counsel for plaintiff and appellant (K.M.)
Aug 5 2004	Time extended to grant or deny review   to and including 9-16-2004
Sep 1 2004	Petition for review granted (civil case)   Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Brown, and Moreno, JJ.
Sep 1 2004	Letter sent to:   All counsel enclosing a copy of the grant order and the certificate of interested entities and persons form.
Sep 14 2004	Certification of interested entities or persons filed   by Jennifer Wald, Hersh Family Law Practice , counsel for K.M.
Sep 17 2004	Request for extension of time filed   by appellant K. M. for a 30-day extension (to and including 11-1-2004) to file appellant's opening brief on the merits.
Sep 24 2004	Extension of time granted   To November 1, 2004 to file appellant's Opening Brief on the Merits.
Oct 18 2004	Certification of interested entities or persons filed   Attorney Diana Richmond for Resp.( E.G.).
Nov 1 2004	Received:   Appellant's oversized brief on the merits.
Nov 1 2004	Application to file over-length brief filed
Nov 2 2004	Opening brief on the merits filed   with permission.
Nov 9 2004	Request for extension of time filed   by resp E.G. to file the answer brief on the merits, to 12-30-04.
Nov 10 2004	Extension of time granted   to Dec. 30, 2004 for respondent to file the answer brief on the merits.
Dec 29 2004	Answer brief on the merits filed   Respondent ( E.G.)
Jan 12 2005	Request for extension of time filed   Appellant ( K.M.) to file the Reply Brief on the Merits. Asking to Feb. 7, 2005.
Jan 14 2005	Request for extension of time filed   by amicus curiae National Center for Lesbian Rights, requesting a 30-day extension to file its application and amicus brief within 30 days after the final brief is filed in any of the related cases.
Jan 19 2005	Extension of time granted   to Feb. 7, 2005 for appellant to serve and file the reply brief on the merits.
Jan 25 2005	Extension of time granted   The application for extension of time filed by amicus curiae National Center for Lesbian Rights to serve and file its application and amicus curiae brief is hereby granted. The application and amicus curiae brief must be filed within thirty days after the final brief on the merits is filed in S125643..
Jan 26 2005	Extension of time granted   The order filed 1-25-2005 is hereby modified as follows: "The application for extension of time filed by amicus curiae National Center for Lesbian Rights to serve and file its application and amicus curiae brief is hereby granted. The application and amicus curiae brief must be filed within thirty days after the final brief on the merits is filed in S126945."
Feb 7 2005	Received:   Application for permission to file oversized (6384 words) reply brief on the merits in excess of word limitation (4200). -- CRC29.1(c)
Feb 7 2005	Motion filed (non-AA)   Appellant's Motion for Calendar Preference (CRC 19)
Feb 9 2005	Reply brief filed (case fully briefed)   (with permission (oversized)
Feb 23 2005	Order filed   The motion of K.M. for calendar preference, filed on February 7, 2005, is granted pursuant to California Rules of Court, Rule 19 on the basis that this case involves a determination of parental rights involving young children. On the court's own motion, we grant calendar preference in the related cases of Eliza B. v. Superior Court, S125912, and Kristine H. v. Lisa R., S126945 on the same basis.
Mar 3 2005	Received:   Letter from Jill Hersch, lead attorney for Appellant K.M. requesting that oral argument not be calendared on the following dates, due to vacation plans: 4/4/005 - 4/17/2005 and 5/31/2005 - 6/15/2005
Mar 7 2005	Received:   Letter from Diana E. Richmond, attorney for Respondent E.G. requesting that oral argument not be calendared on the following dates due to vacation: Unavailable dates: June 4-30, 2005.
Mar 11 2005	Received application to file Amicus Curiae Brief   by Kristina Sica in support of respondent
Mar 11 2005	Application to appear as counsel pro hac vice (granted case)   by Liberty Counsel Mathew D. Staver and Mary E. McAlister for Rena M. Lindevaldsen to appear as counsel pro hac vice on behalf of amicus curiae Kristina Sica. Amicus counsel are members of the Florida State Bar.
Mar 11 2005	Received:   and forwarded to the State Bar of California filing fees for pro hac vice applications.
Mar 11 2005	Request for extension of time filed   by California NOW and California Women's Law Center for (1) to file a single amicus curiae application and brief to be considered in all three cases and (2) for an order externding time to April 8, 2005, to file amici's brief. [Consolidated with S125912 and S126945]
Mar 15 2005	Received application to file Amicus Curiae Brief   Northern California Association of Counsel for Children and the National Association of Counsel for Children in support of the interests of the Children
Mar 25 2005	Permission to file amicus curiae brief granted   The application of Northern California Association of Counsel for Children and the National Association of Counsels for Children for permission to file an amicus curiae brief in support of the interests of the children is hereby granted. An answer thereto may be served and filed by any party on or before April 28, 2005.
Mar 25 2005	Amicus curiae brief filed   Northern California Association of Counsel for Children and the National Association of Counsels for Children in support of the interests of the children.
Mar 25 2005	Request for extension of time to file amicus curiae brief   On application of amicus curiae California NOW, Inc., and California Women's Law Center and good cause appearing, it is ordered that the time to serve and file its amicus curiae brief is extended to and including April 8, 2005. Amici's request to file a single amicus curiae application and brief to be considered in all three cases (S125643, S125912 and S126945) is hereby granted An answer thereto may be served and filed by any party on or before April 28, 2005.
Mar 25 2005	Application to appear as counsel pro hac vice granted   The applications to Mathew D. Staver and Rena M. Lindevaldsen both of the State of florida for admission to appear as counsel pro hac vice on behalf of amicus curiae Kristina Sica is hereby granted. (See Cal. Rules of Court, rule 983.)
Mar 25 2005	Permission to file amicus curiae brief granted   The application of Kristina Sica for permission to file an amicus curiae brief in support of respondent is hereby granted. An answer thereto may be servedand filed by any party on or before 4-28-05. The request of amicus curiae Kristina Sica for leave to appear and participate in oral argument is DENIED.
Mar 25 2005	Amicus curiae brief filed   by Kristina Sica in support of respondent.
Mar 28 2005	Received:   letter from Amicus Attorney Rena Linevaldsen for Amicus Kristina Sica.
Apr 6 2005	Received application to file Amicus Curiae Brief   By Children's Advocacy Institute in support of appellant {K.M}. Application and brief has been filed under case S126945 (one consolidated brief for all 3 related cases).
Apr 8 2005	Received application to file Amicus Curiae Brief   of Tom Homann Lawers for Individual Freedom Lesbians and Gay Lawyers Assoc.,of L.A. and Sacramento Lawyers for the Equality of Gays and Lesbians in Support of appellant K.M. and (in suppot of RPI, Emily B. and El Dorado County in S125912, and Lisa Ann R. in S126945.
Apr 8 2005	Received application to file Amicus Curiae Brief   California Now, Inc., and California Women's Law Center.
Apr 8 2005	Received application to file Amicus Curiae Brief   The American Civil Liberties Union of Southern California, Civil Liberties Union of Northern California, Civil Liberties Union of San Diego and Imperial Counties and the American Civil Liberties union in support of appellant {K.M}.
Apr 8 2005	Received application to file Amicus Curiae Brief   The Center for Children's Rights at Whittier Law School; The National Center for Youth Law; The Youth Law Center; Joan Heifetz Hollinger and The Children's Advocacy Project; Boalt Hall in support of appellant {K.M.}.
Apr 11 2005	Received application to file Amicus Curiae Brief   and brief of The Los Angeles County Bar Association (including its Family Law Section, Barristers, and Sexual Orientation Bias Committee), The San Fernando Valley Bar Association and its Family Law Section, The Family Law Section of the Beverly Hills Bar Association, The Bar Association of San Francisco, The Association of Certified Family Law Specialists, Women Lawyers Asosciaiton of Los Angeles, in support of the interests of the children. CRC 40.1(b)
Apr 12 2005	Permission to file amicus curiae brief granted   The application of The Los Angeles County Bar Association (including its Family Law Section, Barristers, and Sexual Orientation Bias Committee), et al., for permission to file amici curiae brief in support of the interests of the children is hereby granted. An answer thereto may be served and filed by any party on or before April 28, 2005.
Apr 12 2005	Amicus curiae brief filed   The Los Angeles County Bar Association (including its Family Law Section, Barristers, and Sexual Orientation Bias Committee), et al., in support of the interests of the children.
Apr 12 2005	Permission to file amicus curiae brief granted   The application of Center for Children's Rights at Whittier Law School, et al., for permisison to file amici curiae brief in support of Appellant K.M. is hereby granted. An answer thereto may be served and filed by any party on or before April 28, 2005.
Apr 12 2005	Amicus curiae brief filed   Center for Children's Rights at Whittier Law School, et al. in support of Appellant K.M.
Apr 12 2005	Permission to file amicus curiae brief granted   The application of The Los Angeles County Bar Association (including its Family Law Section, Barristers, and Sexual Orientation Bias Committee), et al. for permission to file amici curiae brief in support of the interests of the children is hereby granted. An answer thereto may be served and filed by any party on or before April 28, 2005.
Apr 12 2005	Amicus curiae brief filed   by The Los Angeles County Bar Association (including its Family Law Section, Barristers, Sexual Orientation Bias Committee), et al. in support of the interests of the children.
Apr 12 2005	Permission to file amicus curiae brief granted   The application of California NOW, Inc. and California Women's Law Center for permission to file amici curiae brief is hereby granted. An answer thereto may be served and filed by any party on or before April 28, 2005.
Apr 12 2005	Amicus curiae brief filed   by California NOW, Inc. and California Women's Law Center.
Apr 12 2005	Permission to file amicus curiae brief granted   The application of Children of Lesbians and Gays Everywhere, et al. for permission to file amici curiae brief in support of Appellant K.M. is hereby granted. An answer thereto may be served and filed by any party on or before April 28, 2005.
Apr 12 2005	Amicus curiae brief filed   Children of Lesbians and Gays Everywhere, et al., in support of Appellant K. M.
Apr 12 2005	Permission to file amicus curiae brief granted   The application of Children's Advocacy Institute for permission to file an amicus curiae brief in support of appellant (K.M.) is hereby granted. An answer thereto may be served and filed by any party on or before April 28, 2005.
Apr 12 2005	Amicus curiae brief filed   by Children's Advocacy Institute in support of appellant (K.M.)
Apr 12 2005	Permission to file amicus curiae brief granted   The application of Tom Homann Law Association et al for permission to file amici curiae brief in support of Appellant K.M. is hereby granted. An answer thereto may be served and filed by any party on or before April 28, 2005.
Apr 12 2005	Amicus curiae brief filed   by Tom Homann Law association et al in support of Appellant K.M.
Apr 12 2005	Received application to file Amicus Curiae Brief   and brief of Children of Lesbians and Gays Everywhere et al. in support of Appellant K. M. CRC 40.1(b) -- Overnite Express
Apr 12 2005	Permission to file amicus curiae brief granted   On application of American Civil Liberties Union of Southern California et al. for permission to file amici curiae brief in support of appellant (K.M.) is hereby granted. An answer thereto may be served and filed by any party on or before April 28, 2005.
Apr 12 2005	Amicus curiae brief filed   American Civil Liberties Union of Southern California et al in support of appellant (K.M.).
Apr 14 2005	Received:   Letter from Eilke, Fleury, et al dated 4-14-2005, requesting the Court to accept letter as California Psychological Association's request for joinder in amici curiae brief by Northern California Association of Counsel for Children (NCACC) and National Association ofCounsel for Children (NACC). (Received in Sacramento)
Apr 20 2005	Order filed   The request for joinder by the California Psychological Association ("CPA") to join in the amici curiae Northern California Association of Counsel for Children ("NCACC") and National Association of Counsel for Children ("NACC") is hereby granted.
May 3 2005	Case ordered on calendar   5/24/05, 9am, S.F.
May 12 2005	Letter brief filed   By counsel for Respondent re: New Authorities.
May 13 2005	Supplemental brief filed   Respondent E.G.
May 16 2005	Request for Extended Media coverage Filed   By The California Channel. (Live Broadcast).
May 18 2005	Letter brief filed   by appellant K. M.
May 18 2005	Request for Extended Media coverage Granted   Request for media coverage, filed May 16, 2005, is granted, subject to the conditions set forth in rule 980, California Rules or Court.
May 23 2005	Request for Extended Media coverage Filed   Stephanie Mullen of the Associated Press. (Still camera coverage)
May 23 2005	Request for Extended Media coverage Granted   Request for media coverage, Filed May 23, 2005, is granted, subject to the conditions set forth in rule 980, California Rules of Court.
May 24 2005	Cause argued and submitted
Aug 22 2005	Opinion filed: Judgment reversed   Opinion by Moreno, J. -- joined by George C.J., Baxter & Chin JJ. Dissenting Opinion by Kennard, J. Dissenting Opinion by Werdegar, J.
Sep 1 2005	Rehearing petition filed   by Respondent E. G.
Sep 6 2005	Time extended to consider modification or rehearing   to and including 11-10-2005, or the date upon which rehearing is either granted or denied, whichever occurs first.
Sep 9 2005	Answer to rehearing petition filed   by Appellant K. M.
Oct 19 2005	Rehearing denied   Werdegar, J., is of the opinion the petition should be granted. Kennard, J., was absent and did not participate.
Oct 20 2005	Remittitur issued (civil case)   Certified copy sent to First Appellate District, with two certified copies of the opinion. Remittitur opies mailed to all parties.
Oct 21 2005	Received:   Receipt for remittitur from First District, Division Five, signed for by Mary P. Quilez, Deputy Clerk

Briefs
Nov 2 2004	Opening brief on the merits filed
Dec 29 2004	Answer brief on the merits filed
Feb 9 2005	Reply brief filed (case fully briefed)
Mar 25 2005	Amicus curiae brief filed
Mar 25 2005	Amicus curiae brief filed
Apr 12 2005	Amicus curiae brief filed
Apr 12 2005	Amicus curiae brief filed
Apr 12 2005	Amicus curiae brief filed
Apr 12 2005	Amicus curiae brief filed
Apr 12 2005	Amicus curiae brief filed
Apr 12 2005	Amicus curiae brief filed
Apr 12 2005	Amicus curiae brief filed
Apr 12 2005	Amicus curiae brief filed

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