As they agreed, neither of the two women told anyone who had donated the egg. However, K.M.'s testimony states that she had only agreed to the egg donation because she thought that the couple would raise the children together and that, according to the California Supreme Court opinion, "[she] was going to be a parent." The whole situation escalated in March 2001 when the couple broke up and E.G. took the children with her to Massachusetts, where they would live with E.G.'s mother.
The main issue before the California Supreme Court is whether K.M. could be considered a parent and, if deemed so, would be entitled to visitation rights and liable for child support. In its majority decision, the California Supreme Court concluded that, despite the waiver agreement with the clinic and the verbal agreement between the parties, K.M. is a parent. To address the agreements between the parties, the Court turned to a California case titled In re Marriage of Buzzanca where the California Court of Appeals stated that "[i]t is well established that parents cannot, by agreement, limit or abrogate a child's right to support." Therefore, the agreements with the clinic and E.G. are considered null and void.
The remainder of the majority's reasoning in granting parental status to K.M. is based on the Uniform Parentage Act (UPA) and a California Supreme Court case, Johnson v. Calvert. In that case, it was decided that a wife whose egg was artificially inseminated by her husband's sperm, and then carried in the uterus of a surrogate mother, would be considered the "natural mother" of any child resulting from it. Further, the Court reasoned that the father donated his sperm with the intent that the resulting offspring, even though carried by a surrogate mother, be raised jointly with his wife in their house. Similarly, the Court concluded that the case K.M. v. E.G. is analogous because it is undisputed that the children were intended to be raised jointly in the home owned by the couple. Then the Court did an analysis under the UPA and found that both women were mothers of the twins. Under the UPA, K.M. is considered to be a mother of the twins because of her genetic relationship with the children while E.G. is considered to be a mother of the twins because she had given birth to them.
Writing separate dissents, Justices Kennard and Werdegar take a different view of the Johnson precedent and the UPA. In his dissent, Justice Kennard writes that "K.M.'s position was analogous to that of a sperm donor, who is treated as a legal stranger to the child if he donates through a licensed physician and surgeon" and that "[there is] no reason to treat ovum donors as having greater claims to parentage than sperm donors." Therefore, even though both women could claim to be the mothers of the children under the UPA, the Johnson precedent would still be the deciding factor when determining if K.M. is a parent. Applying the intent test from Johnson, both Justice Kennard and Werdegar came to the conclusion that K.M. would not be a parent because her actions conflict with her statements. In other words, by signing the waiver form and not telling anyone that the twins are her own children, K.M. demonstrated that she did not want to be a parent.
In its ruling, the California Supreme Court has essentially resorted to a "best interests" standard when deciding this case. The "best interests" standard refers to the idea that in family cases, the court decides the outcome based on the best interests of the children at stake. However, the problem with this kind of standard, and why courts may wish to avoid its use, is that it could lead down a slippery slope of excessive governmental interference in private affairs.
Yet this case is not without its merits for those who wish to eventually see the equalization of rights between homosexual and heterosexual couples. With rights comes responsibility. Therefore, by freely choosing to accept the responsibilities that come with rights, homosexuals, such as K.M., who are genuinely interested in their cause, send the message that they are responsible members of society who are willing to do their part. Thus, little by little, the "disparate" treatment towards homosexuals under the law is able to be reduced.
The case opinion for K.M. v. E.G. can be found on the California Supreme Court's website (www.courtinfo.ca.gov/opinions).
