III. K.M. v. E.G.

K.M. and E.G. entered into a committed lesbian relationship in 1993.43 Long before this relationship, E.G. planned to become a mother and had explored available options including artificial insemination and adoption.44 K.M. knew of E.G.'s desire to become a single parent and was “encouraging and supportive” of her efforts.45 Although K.M. and E.G. were in a committed relationship, they discussed and agreed that E.G.'s intention was to have a child of her own.46 In 1994, E.G. learned that her repeated attempts at artificial insemination were unsuccessful due to her inability to produce sufficient eggs.47 At the suggestion of a fertility doctor, E.G. considered the possibility of using K.M.'s eggs to become pregnant through a surrogacy arrangement.48 E.G. was hesitant because her relationship with K.M. was new, and she feared a custody battle in the future with K.M.49 However, after the twelfth failed insemination, E.G. agreed to enter into a surrogacy agreement, provided that K.M. would only serve as a “real [egg] donor” and E.G. would be the only mother.50

In order to enter into the surrogacy arrangement, K.M. signed a waiver and consent form provided by the fertility clinic.51 The contents of the form (entitled Consent Form for Ovum Donor (Known)) included the following language:

I will agree to have eggs taken from my ovaries, in order that they may be donated to another woman . . . . The recipient will have control over the disposition of all retrieved eggs and resulting embryos . . . . 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 own children . . . . I specifically disclaim and waive any rights in or [to] any child that may be conceived as a result of the use of any ovum or egg of mine, . . . . I waive the right of relationship or inheritance with respect to any child born of this procedure. 52

E.G. and K.M. reviewed the forms together and decided not to reveal to other people that K.M. was the egg donor.53 Although E.G. would be identified as the only parent, she agreed to consider allowing K.M. to adopt the children if their relationship continued for several years.54 In 1995, E.G. gave birth to twin girls using the donated genetic material of K.M and an anonymous sperm donor.55 E.G. listed herself as the only parent on the birth certificates and the children received E.G.'s surname.56

For the next five years, the twins lived together with E.G. and K.M.57 E.G.'s relationship with K.M. began to deteriorate in 2001 and the couple subsequently separated.58 At that time K.M. petitioned the court seeking recognition as a legal parent.59 E.G. argued that she never intended to share parental rights with K.M. and sought a declaratory judgment that she was the only mother of the twins.60

A. The Lower Court Decisions in K.M. v. E.G.: Over Easy

At trial, the court granted E.G.'s motion to dismiss, finding that K.M. was not a legal parent.61 The court examined the intent of the parties and determined that K.M. and E.G. intended only E.G. to be the legal mother.62 Although K.M. and E.G. were in a committed relationship, K.M.'s intent to become an egg donor did not qualify her for legal parent status.63 The trial court applied the donor protection statute explaining 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 sperm through a physician . . . [there is] no reason to treat ovum donors as having greater claims to parentage than sperm donors.”64

The Appellate Court upheld the lower court's decision not to recognize K.M. as a legal parent.65 In so ruling, the court considered the parties' intention that E.G. would be the sole parent, the egg donor consent form containing the waiver of the K.M.'s parental rights, and the parties' relationship at the time of conception.66 Although the court recognized that each of these factors, taken alone, would not necessarily be a determination of parentage, the cumulative effect was sufficient to suggest that E.G. and K.M. intended for E.G. to be the only parent.67 The court concluded that if the parties changed their original intentions and wanted K.M. to be a parent, they had adoption as a means of recourse.68 Quoting from Johnson, the court explained: “'Within the context of artificial reproductive techniques . . . intentions that are voluntarily chosen, deliberate, express and bargained-for ought presumptively to determine legal parenthood.'” 69

Because K.M. donated her eggs without the original intent to become a parent, her ability to gain parent status was precluded unless E.G. consented to adoption.70 K.M. appealed to the Supreme Court of California.71

B. The Supreme Court of California's New Rule: Scrambled

On August 22, 2005, the Supreme Court of California overturned the appellate court in a 4-2 opinion, holding that K.M. qualified as a legal parent despite E.G.'s original intent to become a single parent and K.M.'s waiver of all parental rights to the children.72 The majority applied a new rule, declaring that “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” is a mother of the resulting children.73 In order to reach this rule, the court altered the intent test and declared the donor protection statute inapplicable to situations in which children are raised by lesbian partners in a joint home.