Appeals court rules for birth mother in custody case - Egg donor

[Kadie]

Appeals court rules for birth mother in custody case
Egg donor in lesbian couple had acted as parent before breakup

Bob Egelko, Chronicle Staff Writer
Wednesday, May 12, 2004

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A state appellate court pondered the claims of two women to be mothers of the same children -- one donated the eggs, the other carried them to term, and both raised the twins together -- and decided the birth mother was the only intended legal parent.

In a ruling made public Tuesday, the Court of Appeal panel in San Francisco applied principles from a decade-old surrogate-motherhood case and said the deciding factor was the couple's intent before birth. Despite acting as a co-parent for most of the children's lives, the egg donor had agreed, both orally and in writing, that her now-ex-partner would be their mother, the court said.

"Functioning as a parent does not bestow legal status as a parent,'' said Justice Mark Simons in the 3-0 ruling. The pre-birth agreement, which included a written waiver at a medical clinic, could have been undone only by a formal adoption, he said.

The ruling allows the birth mother, identified as E.G., to keep the 8-year-old girls with her in Massachusetts and limit or deny visitation by her former partner, K.M., who helped raise the girls for six years. E.G.'s lawyer, Diana Richmond, said the decision "affirms couples' freedom to choose who is or isn't the parent'' and doesn't preclude a future ruling that two women would both be recognized as a child's mother.

more,
http://sfgate.com/cgi-bin/article.cgi?f=/c/a/2004/05/11/CUSTODY11.TMP

[Hekate]

1. Surrogacy, donation, the whole legal shebang is being done on the fly

This case is only slightly more complicated than the "usual" because the two parents are lesbians. If they were legally married (and I'm in favor of gay/lesbian marriage for many reasons, including social stability), at least some of this might have been settled by existing laws on marriage and family.

As it is, I think the non-custodial parent has a good case for appeal to gain joint custody or adequate visitation rights unless there's some documented history of abuse. Just because their parents are getting divorced, etc. etc.

But the whole business of DNA donation, womb rental, and everything else to do with modern fertilization and gestation -- legislatively it still seems to resemble the Wild West. The prospective parents are desperate, the doctors are getting to do research paid for by the guinea pigs, the clinics are running a lucrative business, and laws regulating any of this are mostly being made case by case in courtrooms.

Hekate