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Lesbian and gay biological and legal parents, their partners and their children in California must still struggle to fit into a family law framework that often does not acknowledge their existence as families.

Countless numbers of children in the Bay Area and around California are being born into, adopted into and raised by lesbian and gay parents. But legal standards for determining child custody, visitation and parental status have not caught up with this baby boom. For lesbian and gay parents in California, there are no laws explicitly governing same-sex relationships, or relating to the establishment of parental status in the context of those relationships. While the courts have refused to acknowledge the status of non-biological, non-legal parents, developing case law in the realm of intentional parenting has created a new potential for protecting the rights of second parents. Still, the current failure of the state Legislature to address the needs of so-called "alternative" families means that family law rules are applied in some cases and not in others. The "best interests of the child" is an elusive standard--and in some cases may not even apply to children in same-sex families, whose futures are instead determined by limited legal definitions of who is a parent.

This article will discuss current issues in lesbian and gay parenting, with a focus on the status of "second" parents--the same-sex partners of biological or legal parents.

A New Version of Reproductive Choice

For most lesbian couples, artificial insemination using donor sperm (AI) is the simplest, least expensive way to become pregnant. In AI, one partner is inseminated with the semen of a sperm donor--either an anonymous donor chosen through a sperm bank profile, or a donor who is known to the women personally. A known donor agrees to provide sperm and, in most circumstances, agrees to termination of any parental rights he might have to the child born from the procedure. The second partner can then become a legal parent of the child through the independent adoption process or, in some cases, through a Uniform Parentage Act (UPA) petition.

Another increasingly popular option for lesbian couples who can afford it is ovum donation, a process in which an egg is harvested from one lesbian partner and inseminated outside of her body. The fertilized ovum is then implanted in the other partner, who carries the child to term and gives birth to it. By this method, both partners have a genetic relationship to the child--one by virtue of having donated the genetic material and one by virtue of having gestated and given birth to the child. At least two courts in San Francisco County and one in Alameda, have determined that under the Uniform Parentage Act both of the women in an ovum donor situation are legal parents. (See below for in-depth discussion of Johnson v. Calvert and the UPA).

For gay men, surrogacy is a means of conceiving by which at least one of the partners will have a genetic tie to their child. In a surrogacy arrangement, one partner's semen is used to fertilize the egg of an egg donor, which is then implanted in the surrogate. Alternatively, his semen can be used for artificial insemination of the surrogate herself. Following the birth, the surrogate is expected pursuant to contract to relinquish any parental rights to the child she has carried. The donor father is a biological and legal parent of any child so conceived and his partner may adopt the child or, as in lesbian AI and ovum donor cases, may be able to establish his parental relationship with the child through a UPA petition.

Couples and single gay and lesbian would-be parents, can also become parents through domestic or international agency adoption, or independent adoption. In recent years, more and more lesbians and gay men have been adopting through agencies sponsoring international adoptions. After an international adoption is completed, a lesbian or gay parent must consent to his or her partner's second-parent adoption of the child in order to ensure that the child has two legal parents.

Currently in California, as in the rest of the United States, marriage is not an option for lesbian and gay couples. The United States Congress has passed the Defense of Marriage Act, which provides that marriage is defined as the legal union of a man and a woman and states are not required to give full faith and credit to same-sex marriages performed in other states. In California, the Knight Initiative, which will be on the ballot in 2000, seeks to codify the same regulations at the state level and it is fair to say that despite some progress in the Hawaii courts, it is unlikely that same-sex marriage will become a genuine option for lesbian and gay couples any time soon.¹

Second-Parent Adoption

Second-parent adoption, where available, is currently the most common means for same-sex co-parents to become legal parents to their non-biological, non-legally related children. The phrase "second-parent adoption" refers to the adoption of a child born to one partner by the child's non-biological or non-legal second parent, with the consent of the legal parent and without changing the latter's rights and responsibilities. As a result of the adoption, the child has two legal parents and both partners have equal legal status in terms of their relationships with the child. (This same scenario can apply to heterosexual couples who for personal, financial or other reasons do not wish to marry.)

Same-sex second-parent adoptions have been allowed in at least 17 states and are explicitly prohibited in three states. In many California counties they are commonplace, despite the fact that no state laws address the issue of same-sex adoption.² Instead, in a process that is sometimes more political than legal and where more open-minded California courts apply the rule of liberal interpretation of adoption statutes, same-sex second-parent adoptions are completed under independent adoption laws.

Independent adoptions are filed by the second parent as petitioner, with the consent of the birth or legal parent and a proviso that the legal parent's rights will not be affected. Following the filing of the petition, the California Department of Social Services (DSS) is required to conduct a thorough investigation of the petition. The social worker obtains a written profile and a medical history from the petitioner, visits the petitioner, the legal parent and the child in the home, checks the petitioner's fingerprints against the federal child abuse index and inquires of at least three references whether the petitioner is a suitable adoptive parent. After the home study has been completed, the social worker prepares and files with the court a narrative report, setting forth the pertinent facts and the social worker's recommendation as to whether the adoption is in the child's best interests.

With a brief exception, ever since the first second-parent adoptions were filed in the early eighties, the DSS has maintained a policy, in the form of an "underground regulation" requiring social workers to recommend denial of any petition for adoption in which a child is to be adopted by an unmarried couple. The policy of making negative recommendations solely on the basis of marital status continues today (although lesbian and gay activists and parents have hope that the department under Gov. Gray Davis will reinstate the "best interests" policy). As it stands now, any unmarried person seeking to adopt a child in California through independent adoption procedures can expect to receive a negative recommendation from DSS, regardless of his or her suitability to adopt.

However, the negative DSS recommendation is not binding on the court, which is instead required to make its own determination as to whether the adoption is in the child's best interests, using the report as a guide. In many hundreds of California cases, the courts have decided that the adoption was in fact in the child's best interests and that the second parent could adopt.

The Legal Stranger

One of the most significant consequences of second-parent adoption--or, more accurately, of a failure to secure some kind of legal recognition for the second parent--relates to custody and visitation. Currently, if a same-sex relationship involving children dissolves, a child's relationship with a second parent may be unilaterally severed by a birth parent if no adoption has been completed.³ In California, a court may not hold as a matter of law that a parent's sexual orientation makes them an unfit parent--they must look instead to the specific facts and the child's best interests.⁴ However, the courts only reach that question when both parties are considered parents and in same-sex disputes over custody and visitation the courts have not reached the best-interest question at all where no second-parent adoption has been completed. Instead, they have consistently held that the non-biological, non-legal parent is not a parent and thus may not request custody of or visitation with the children to whom they are considered legal strangers.⁵

The first case to so hold was Nancy S. v. Michele G.⁶ In that case, Nancy S., the legal parent of two children, was able to thwart contact between those children and their other parent, her lesbian partner, who had co-parented the children since birth. The Nancy S. court noted that a second-parent adoption would have prevented what it viewed as a truly unfortunate result. (Ironically, despite the court decision, Michele G. did manage to have continuing contact with the children of that relationship and when Nancy S. died in an auto accident in 1998, Michele obtained full guardianship of both children with the consent of the biological mother's family.)

In an April decision out of the 1st District, the court relied on Nancy S., West v. Superior Court⁷ and Curiale v. Reagan,⁸ in reversing a trial court's grant of jurisdiction in a guardianship proceeding and holding once again that the non-biological co-parent in a lesbian relationship has no standing to seek visitation. In Guardianship of Z.C.W. and K.G.W.,⁹ Kathleen C. sought visitation rights with the biological children of her ex-partner, Lisa W. Using a novel legal theory to obtain standing, she contended that she was entitled to become a co-guardian with rights of visitation because she was a de facto parent and because the children were being harmed by Lisa's decision to sever their contact with Kathleen. In the guardianship proceeding, the trial court found that Kathleen was a de facto and psychological parent of the children during the time that she lived with Lisa, but that she subsequently lost that status primarily as a result of her lack of contact with the children; the court denied the petition on the basis that there was no evidence of significant detriment to the children as a result of being deprived of contact with Kathleen.

On appeal, Kathleen argued that the court erred in finding that she had lost her de facto parent status, since her lack of contact with the children was not by her choice, but was Lisa's mandate. She also argued that she had provided clear and convincing evidence in the form of psychological testimony that the children were suffering significant detriment as a consequence of their forced separation from her. The court of appeal held (without analyzing the record) that a guardianship could not be granted in the absence of clear and convincing evidence that parental custody was detrimental and that there is no statutory authority for a limited co-guardianship providing for visitation rights to a non-parent. The court relied on Nancy S. in holding that aside from some limited situations, "California courts have not accorded de facto parent status to a nonparent over the objection of the biological parent." The California Supreme Court has denied a request for review of Kathleen's case.

In all of the significant lesbian custody disputes that have been decided by the appellate courts, the courts have directed the non-biological parents to the Legislature. The Legislature has not yet addressed these issues.

The Uniform Parentage Act

Recent developments in California case law have given rise to an alternative method for non-biological parents to establish legally their parent-child relationships with children born to their lesbian or gay partners. In Los Angeles, San Francisco, San Mateo and Alameda counties, lesbian and gay parents have successfully filed UPA Petitions to Establish Parental Relationships in certain cases. The UPA may provide a complete alternative to adoption as a means to protect parental relationships in gay and lesbian families where a lesbian couple plans together to conceive and raise a child and uses a medical procedure to become pregnant; and where a gay male couple utilizes the services of a surrogate to conceive and bear a child. Such decrees have been granted in ovum donor cases in San Francisco and Alameda counties (including pre-birth), in surrogate cases in Los Angeles County and in typical second-parent adoption situations in San Luis Obispo, San Mateo and San Francisco counties.

California courts have recognized that persons, including women, who initiate medical procedures that are intended to and do result in the birth of a child are engaging in procreative acts and should therefore be treated as lawful parents. In Johnson v. Calvert,¹⁰ the California Supreme Court expanded the concept of a "natural parent" under the UPA to include a person who intentionally causes the birth of a child through the use of reproductive technology. In Johnson, a woman ("Crispina") supplied an embryo that was fertilized and implanted in the womb of a second woman ("Anna"), who agreed to act as a surrogate and to give up any rights to the child at birth. As a result of this procedure, Anna became pregnant. Subsequently, Crispina and her husband--who had donated the sperm--brought an action seeking a declaration that they were the legal parents of the unborn child; Anna filed her own action to be declared the mother of the child; and the two actions were consolidated.

While acknowledging that no clear answer to the question of what constitutes a mother-child relationship appears in the act, the Supreme Court concluded that the Uniform Parentage Act "facially applies to any parentage determination, including the rare case in which a child's maternity is in issue." The court held that both Anna and Crispina had presented satisfactory evidence of motherhood--Anna, by virtue of her having given birth to the child; and Crispina, by virtue of her having established a genetic relationship with the child.

Having determined that both women had a valid claim to a mother-child relationship, the court resolved the problem by looking to the original intent of the parties. "We conclude that although the Act recognizes both genetic consanguinity and giving birth as means of establishing a mother and child relationship, when the two means do not coincide in one woman, 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."

With this holding in favor of Crispina, the Supreme Court expressly rejected the contention that legislative guidance was a necessary precursor to the courts' resolution of new and unanticipated issues relating to the parentage of children born as a result of reproductive technologies. Basing its holding on the longstanding principle that courts must often "construe statutes in factual settings not contemplated by the enacting legislature," the court found that the UPA did provide a mechanism for resolving the dispute over motherhood, "albeit not one specifically tooled for it."

The court also held that the UPA must be applied in a strictly gender-neutral manner, even where the language of the statute is couched in gender-specific terms and eschewed a mechanical or formalistic approach to allocating parental rights under the UPA, in favor of an approach that looks to the parties' intentions. While refusing to find in this case that the child at issue had two mothers, the court left open the possibility that--faced with compelling reasons--recognition of two mothers could be appropriate in some future situation. In addition, it elevated the intent of the parties over literal interpretation of the statute, holding that "intentions that are voluntarily chosen, deliberate, express and bargained for ought presumptively to determine legal parenthood."

Family Code Section 7613(a) provides that a husband in an alternative insemination case who consents to a medical procedure "is treated in law as if he were the natural father of a child thereby conceived." Under the gender-neutral "parity of reasoning" mandated by Johnson, the status of such a non-biological parent as a lawful parent may be established under that section, by virtue of his or her consent to and participation in the medical procedure that led to reproduction. Many lesbian and gay couples, like the Calverts, "desired to have a child" but were "physically unable to do so without the help of reproductive technology." Also like the Calverts, they "affirmatively intended the birth of their child and took the steps necessary" to engage in artificial insemination procedures resulting in conception. In most such cases, they jointly made the decision to have a child; they together located sperm banks and agreed on the one they would use; they mutually selected a sperm donor (or surrogate); they jointly contributed to the costs of the insemination (or surrogacy contract); and they jointly planned and prepared for the birth of their child. "But for their acted-on intention, the child would not exist."

In People v. Sorensen,¹¹ the California Supreme Court engaged in a similar analysis of parentage in the context of a father's criminal conviction for willful failure to provide for his child. The father in Sorensen--who was himself sterile--had consented to the artificial insemination of his wife for purposes of bringing a child into the marriage. The father knew at the time he consented to the procedure that any child born thereby would be treated as his legal child and in a later dispute over support the court held that: "a reasonable man who, because of his inability to procreate, actively participates and consents to his wife's artificial insemination in the hope that a child will be produced whom they will treat as their own, knows that such behavior carries with it the legal responsibilities of fatherhood. One who consents to the production of a child cannot create a temporary relation to be assumed and disclaimed at will, but the arrangement must be of such character as to impose an obligation of supporting those for whose existence he is directly responsible."

Finally, in the case that provides perhaps the most significant support for using the UPA for gay and lesbian couples, the 4th District also looked to the question of involvement in conception and intent of the parties in In re Marriage of Buzzanca.¹² In Buzzanca, a couple agreed to have a fertilized embryo--genetically unrelated to either one of them--implanted in a woman who agreed to carry and give birth to the child for them. However, the couple separated prior to the birth of the child and the father subsequently disclaimed responsibility, "financial or otherwise," for the child. The trial court reached the conclusion that the child born from the above-described procedure had no legal parents. In stating its disagreement with this conclusion, the court of appeal analogized the situation in Buzzanca to those in Johnson and Sorensen and noted that the Buzzanca case also involved a situation where: "a child is procreated because a medical procedure was initiated and consented to by intended parents." The court went on to find that the couple who had planned to create and raise the child, taking expensive and complex steps to do so, were the legal parents of the child.

In so holding, the Buzzanca court expressly rejected the argument that a rule recognizing the intending parents as the child's legal parents "should be applied only in situations ... where the intended parents have a genetic tie to the child." Rather, "[t]he context of the Johnson language ... reveals a broader purpose, namely, to emphasize the intelligence and utility of a rule that looks to intentions" to allocate parental rights. In fact, the court concluded, "[t]he context was not limited to just Johnson-style contests between women who gave birth and women who contributed ova, but to any situation where a child would not have been born 'but for the effort of the intended parents.'"¹³

With regard to the husband in Buzzanca, the court held that the absence of any genetic tie between him and the child had no legal significance in light of his undisputed consent to the insemination and surrogacy arrangement. In so holding, the court rejected the husband's literalist argument that "the artificial insemination statute should not be applied because ... his wife did not give birth." In a lesbian or gay UPA case, the court may likewise reject a literalist interpretation that requires the consenting and participating partner to be a husband and acknowledge that the non-biological parent, whether male or female, married or not, is in precisely the position of the husband in Buzzanca and the husband contemplated in the language of Section 7613(b) of the Family Code. In fact, the Buzzanca court demonstrated that the term "husband" need not be interpreted literally, in noting that the wife was herself "situated like a husband in an artificial insemination case whose consent triggers a medical procedure which results in a pregnancy and eventual birth of a child."

Reading Sorenson, Johnson and Buzzanca together, the following is clear: Parenthood is to be established first by looking to the Uniform Parentage Act; and where that fails or gives an insufficient answer, by looking to the original intent of the parties. The significance of this legal principle to lesbian and gay families cannot be overstated. To date, courts in Los Angeles, San Luis Obispo, San Mateo and San Francisco counties have granted UPA petitions establishing legal relationships between non-biological second parents and the genetic children of those parents' partners. The procedure is less expensive and faster than an adoption,¹⁴ but it also differs in a more significant way. Adoption is a process by which the DSS and the courts determine whether the petitioner can be made a parent of the child at issue. A UPA petition argues that the respondent is already a parent and seeks the court's acknowledgment of that existing parental relationship--a finding that far more accurately reflects the emotional reality for lesbian and gay parents and their children.

Conclusion

For lesbian and gay second parents in California, the reality is still that if they do not complete an adoption or obtain a UPA judgment, they are in danger of losing all contact with their children in the event of an acrimonious breakup with their partner. Adoptions are consistently available in a limited number of jurisdictions in California, but they remain an expensive and cumbersome process for same-sex couples who feel that their parental relationship with children they planned for and are raising should be established by virtue of that planning and the emotional bonds they have formed with their child and within their family. The Uniform Parentage Act holds the potential to streamline that process somewhat, rendering it more accessible to more lesbian and gay parents and coming closer to reflecting the reality of their daily lives.

Still, lesbian and gay biological and legal parents, their partners and their children must struggle to fit into a family law framework that does not acknowledge their existence as families.

Notes

1. This article cannot treat either the legal issues or the current legal status of the movement for same-sex marriage in any detail. See, generally, Mark Strasser, "Sodomy, Adultery and Same-Sex Marriage:On Legal Analysis and Fundamental Interests," UCLA Women's Law Journal (Spring/Summer 1998); James M. Patten, "The Defense of Marriage Act: How Congress Said 'No' to Full Faith and Credit and the Constitution," Santa Clara Law Review (1998); Hannah Schwarzschild, "Same-Sex Marriage and Constitutional Privacy: Moral Threat and Legal Anomaly," Berkeley Women's Law Journal (1988-89).
2. The National Center for Lesbian Rights reports second-parent adoptions have been granted in CA counties of Alameda, Butte, Contra Costa, Del Norte, Fresno, Los Angeles, Marin, Monterey, San Diego, San Francisco, San Luis Obispo, San Mateo, Santa Clara, Santa Cruz, Sonoma and Ventura.
3. Nancy S. v. Michele G. (1991) 228 Cal.App.3d. 831.
4. Nadler v. Superior Court (1967) 255 Cal.App.3d.
5. Nancy S. v. Michele G., Curiale v. Reagan (1990) 222 Cal.App.3d 1957; West v. Superior Court (1997) 69 Cal.Rptr. 160; In re Guardianship of Z.C.W. and K.G.W. (1999) 99 C.D.O.S. 2845, April 21, 1999.
6. Supra, 228 Cal.App.3d. 831
7. Supra, 69 Cal.Rptr. at 164 (trial court lacks subject matter jurisdiction over petition for visitation rights filed by nonparent in lesbian relationship).
8. Supra, 222 Cal.App.3d at 1600 (trial court lacks jurisdiction to award custody or visitation to lesbian who had no colorable claim of right to custody).
9. Supra, 99 CDOS at 2845 (petition for rehearing pending, filed May 4).
10. Johnson v. Calvert (1993) 5 Cal.4th 84, cert. denied, 114 S.Ct. 206 (1993) and cert. dismissed, 114 S.Ct. 374 (1993)
11. People v. Sorensen (1968) 68 Cal.2d.
12. In re Marriage of Buzzanca (1998) 61 Cal.App.4th.
13. In a footnote, the Buzzanca court declined to "speculate as to the answer" to the question whether Family Code Section 7613 could be applied by a "parity of reasoning" to a non-married couple, as that question was not before it. Certainly there is nothing in the Buzzanca opinion that would preclude such an application of its holdings and the breadth of the language relating to intent, read in conjunction with the Johnson holding of gender-neutrality in the application of the UPA, leads to the conclusion that such a holding would not be outside the scope of the legal principles enunciated in these cases.
14. An adoption takes six to eight months to complete and cannot be commenced until after the child's birth. The DSS charges a fee of $1,250 for its investigation. Cal. Fam. Code § 8810(a)(1). In contrast, the UPA petition can be filed prior to the child's birth if desired and because there is no DSS investigation, there is no $1,250 fee.

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