Elisa Maria B. v. El Dorado County Superior Court

Elisa B. sought a writ to set aside a decision of the El Dorado County Superior Court whereby she was found to be a legal parent of, and ordered to pay child support for, children born during her relationship with another woman, Emily B..

(County of El Dorado and Emily B., Real Parties in Interest), California Supreme Court Case No. S125912; Court of Appeal Case No.CO42077; Superior Court Case No. PFS 20010244

Elisa B. sought a writ to set aside a decision of the El Dorado County Superior Court whereby she was found to be a legal parent of, and ordered to pay child support for, children born during her relationship with another woman, Emily B.. Elisa B. sought to abdicate any responsibility for these children despite her prior consent to the artificial insemination which resulted in their birth.

NCYL joined Legal Services for Children and the Youth Law Center in filing an amicus curiae brief opposing writ relief in this case. NCYL’s position in the case is that a parent, regardless of gender or marital status, is obligated to support a child born through assisted reproductive technology where that parent consented to, and was involved in, the insemination decision and process. The focus is on the interests of the child in having support from both parents who intended to bring about the birth of that child and who agreed to take on the responsibilities for raising that child; the parents’ biological relationship to the child is not controlling in this situation.

In this case, two women entered into a relationship, lived together, and decided to start a family by using artificial insemination. Together they chose a sperm donor; each partner subsequently became pregnant using the same donor in the insemination process so their children would be biologically related. The partners jointly participated in all aspects of the birth preparations, the births of the three children, naming the children, and caring for the children. After several years, the couple separated but Elisa B. continued to provide support for the two children born to Emily B.. Elisa B. subsequently stopped providing support for these children. The Superior Court found that a parent/child relationship existed between Elisa B. and the children and ordered the payment of child support.

NCYL joined in opposing writ relief to protect the underlying principle that children are entitled to support from both of their parents, regardless of the marital status or gender of those parents, and regardless of the parents’ biological relationship to the child.

On May 20, 2004 the Third District Court of Appeal granted the petitioner’s writ of mandate and directed the trial court to vacate its order and enter a new order in favor of petitioner. The court held, inter alia, that Elisa B. was not a parent within the meaning of the Uniform Parentage Act and thus was not obligated to pay child support. The Attorney General and Real Party in Interest Emily B. filed Petitions for Review in the California Supreme Court, which were granted on September 1, 2004. The Supreme Court also granted review on the same day in two cases presenting similar legal issues: K.M. v. E.G., S125643 (A101754; 118 Cal.App.4th 477, mod 118 Cal.App.4th 1352c; Marin County Superior Court; CV 020777); Kristine H. v. Lisa R., S126945 (B167799; 120 Cal.App.4th 143, mod. 120 Cal.App.4th 881j; Los Angeles County Superior Court; PF001550).

On April 8, 2005, NCYL joined the Child Welfare League of America; Legal Services for Children; Youth Law Center; and Professor Joan Heifetz Hollinger in filing an amicus brief in the California Supreme Court in all three cases arguing that: 1) There is a long history of discrimination against children born out of wedlock; 2) As a result of the terrible unfairness, the courts and legislatures responded by providing that these children are entitled to substantive equality; 3) The Uniform Parentage Act (UPA) applies in establishing parentage in same sex parentage cases; and 4) There is no basis for refusing to provide substantive equality for children born to unregistered same-sex couples.

On August 22, 2005, the California Supreme Court broke new ground by holding that children born to same-sex couples should be protected regardless of the circumstances of their birth. Elisa B. v. Superior Court, (2005) 37 Cal. 4th 108; K.M. v. E.G. (2005) 37 Cal.4th 130; Kristine H. v. Lisa R. (2005) 37 Cal.4th 156. In each of the three factually disparate cases the court held that same-sex partners have full parental status regardless of their marital status or biological connection with their children where the lesbian partners had cooperated in conceiving and rearing the children as a family. The Supreme Court expressly recognized that lesbian parents who, regardless of biology, assist in the creation of children and hold them out as their own are parents under the UPA.

In Elisa B., the Supreme Court unanimously held that the UPA dictates whether a nonbiological same sex partner is a parent of the children. Specifically, the court held that Family Code section 7611(d) which presumes that a man who receives a child into his home and openly holds out the child as his natural child is the natural father of the child applies equally to a woman seeking presumed mother status. The court easily found that the facts of this case supported a finding that the partner held the children out as her natural children and therefore has the rights and responsibilities of a natural parent and has a duty to pay child support for the children.

In K.M. v. E.G., the court held in a 4-2 decision that the lesbian partner who supplied the ova to the other partner which produced the children is the children’s second mother despite the fact there was a waiver of her parental rights. The court concluded that “[a] woman who supplies ova to be used to impregnate her lesbian partner, with the understanding that the resulting child will be raised in their joint home, cannot waive her responsibility to support that child. Nor can such a purported waiver effectively cause that woman to relinquish her parental rights.” Again the court found that the UPA required such a finding. The genetic relationship to the children constituted evidence of a mother and child relationship as contemplated by the Act. Thus, both partners are mothers of the children under the UPA.

In Kristine H. v. Lisa R., held that a lesbian partner would be estopped from attacking a stipulated judgment of the partners that a child to be born to one of the partners would be the child of both partners. The court did not decide whether a stipulated judgment establishing parentage is valid but instead held that the partner challenging the validity of the judgment is estopped from making the challenge because it would be unfair to both the other partner and the child to permit the challenge of the validity of the judgment and would contravene the public policy favoring that a child has two parents rather than one. The court noted that the trial court did have subject matter jurisdiction of this issue because the UPA provides that any person may bring an action at any time to determine the existence or nonexistence of a presumed father and child relationship.

In all three cases the court made clear that under the UPA a child can have “two parents, both who are women.” Importantly, these decisions recognize that that familial relationships stem from emotional attachments as well as from blood relationships. These decisions will help ensure that in California emotional bonds formed between children and nonbiological children will be protected and children will have the financial and practical support of two parents instead of just one.

Updated Dec. 20, 2005