IV. Analysis

A. K.M. v. E.G. Weakens the Stability of Surrogacy Arrangements

Through application of the Johnson standard, the K.M. appellate court examined the intentions of K.M. and E.G. at the time of the surrogacy arrangement, finding that E.G. intended to be the sole parent of the children.74 However, the Supreme Court of California held that this finding was superseded by another consideration: E.G. and K.M.'s intent to live together with the children. The Supreme Court notes that “[t]he circumstances of the present case are similar [to Johnson] 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.”75 The majority notes that establishing intent after time has passed is a difficult task and determines that the only indisputable manifestation of intent is the fact that the couple lived together with the children.76 This modified application of the intent test presents a multitude of problems.

First, the court's reluctance to give credence to E.G.'s intent to become a single parent undermines a fundamental premise of the court system. Justice Moreno declined to focus on the couple's original intent because it would require the court to base “the determination of parentage upon a later judicial determination of intent made years after the birth of the child.”77 Although courts may struggle to determine intent in ambiguous situations, the judiciary's primary function in such cases is to make an accurate determination of factual issues such as intent through evidentiary analysis.78 Under the K.M. holding, even if parties to a surrogacy agreement establish their intentions through discussion, contract, and subsequent actions, the legal rights of each party could be successfully challenged years later.

Furthermore, despite Justice Moreno's reluctance to make a parentage determination based on intent, the court's decision ultimately rests on such a determination: the intent of the parties to raise the children in a joint home.79 The Johnson court clearly established that the intent inquiry focuses on the time of conception: the legal mother is the woman who “from the outset intended to be the child's mother.”80 The K.M. majority's focus on the subsequent living arrangement of the parties is an unprecedented jump from the established standard, one that could not have been predicted and which undermines an unknown number of surrogacy arrangements between co-habiting parties.81 Although the percentage of surrogacy arrangements established between parties that live together is undocumented, the enforcement of their original agreements with respect to parentage should not be precluded because of a living arrangement unrelated to procreative actions.

B. The K.M. Decision Weakens Statutory Protections for Donors

As mentioned earlier, the Johnson court declined to apply the California donor protection statute to individuals who donate gametes with the intention of becoming parents.82 According to Johnson, individuals in a surrogacy arrangement who intend to parent genetically related children are not donating their gametes and cannot be denied parentage by statutes precluding the parental rights of gamete donors.83 The K.M. majority makes a similar (although much more questionable) distinction between women who “donate” eggs and women like K.M., who (according to the Supreme Court) “provide . . . ova to her lesbian partner with whom she [i]s living so that [the partner] can give birth.”84 Essentially, women who “donate” eggs are not entitled to declarations of parentage, while “lesbian” women who “provide” ova can be legal parents, even against the wishes of the gestational mother.

This distinction is arbitrary and weakens the protections given to egg donors and recipients through legislation. The K.M. opinion offers no standard by which to distinguish egg “donors” and “providers,” and the court's unwillingness to consider the surrogacy agreement between the parties and K.M.'s donor consent form as indicators of her status leaves no discernable guidance. In addition, the majority's distinction expressly applies only to “lesbian partner[s]” which creates a classification yet to be defined by law.85 Finally, the court neglects to indicate how long partners would have to live together to fall under this provision. Under the K.M. rule, if a surrogacy dispute arises between cohabiting lesbians, legal maternity will turn on whether or not the genetic mother donated or provided the eggs to her partner, regardless of how the parties intended or agreed to determine parentage.

The distinction between donors and providers allows not only the opportunity for future donors to assert parental rights over children created with their eggs, but also allows individuals who conceive with donated eggs to impart maternal responsibilities to the donor above and beyond those agreed on at the time of conception. Based on the K.M. rule, if the genetic and gestational mothers reside together for an unspecified period of time, the act of co-habitation could serve as the basis for parentage liability of the partner who did not intend to assume parental responsibilities.86 By disregarding donor protection statutes precluding K.M.'s right to be recognized as a legal parent to children created with her donated eggs, the court's decision eliminates protections for both donors and recipients of genetic material. Essentially, the majority has rewritten the donor protection statute to state that a gamete donor is the legal parent of a child born through ART whenever the donor and birth mother “intended that the resulting child would be raised in their joint home,” even though both the donor and the birth mother did not originally intend to be joint parents.87