Waldlaw Blog

Tuesday, August 23, 2005

What do the California Supreme Court decisions actually mean?

I'm getting a lot of calls and e-mails asking me what yesterday's Supreme Court decisions really mean. I'll do my best to answer here. First of all, remember that there were 3 separate decisions, for a total of 70 pages, including a concurrence and 2 dissents. That's a lot of pages to digest. That said, in my not-so-humble opinion there's both good news and bad news to report. First the good news: All of the kids whose cases were before the Supreme Court were born into two-parent families, and all of them had been found by the lower courts to have only one legal parent. This put all of them at risk. The Supreme Court fixed this and, in doing so, it clarified that the Uniform Parentage Act applies to lesbian families too, and that our children are not "illegitimate" in any meaningful way any more than children born to unmarried heterosexual couples are. This is, in a word, HUGE!! So kudos to the court on this point. Further, by the decisions, California has gone on record as supporting the rights of children born into non-traditional families to be treated the same as other children. Children born to lesbian couples now get to have two legal parents. Parenthood no longer depends on either marital status or gender -- and it doesn't rely exclusively on biology. All of this is good for children, good for families, and good for our State. And it is enormously important, politically, at a time when California voters are being asked to vote not only on marriage equality but also on whether same-sex couples are entitled to fundamental protections offered by domestic partnerships. The California Supreme Court just gave our families a safety net -- even if domestic partnerships are voted down (GOD FORBID), our children still will have parents. So, again, kudos to the court. Now the bad news: One of the issues before the Court was whether parentage actions based on the intent of the parties were valid. To explain: particularly in cases involving assisted reproductive technologies (usually surrogacy), there is a procedure whereby couples have gone into court to establish their parenthood based on their intentional procreative conduct (e.g. obtaining donor eggs and hiring a gestational surrogate to carry the resulting embryos). This procedure has been available prebirth, thereby giving folks using these methods to conceive children the security of having parental rights before the baby is born, and giving them the convenience of getting their names on the original birth certificate. But we have not had clear, undisputed legal authority on whether this procedure is actually valid, and courts around the state are split on this issue. For example, this procedure is done regularly in Los Angeles, but I know of no Northern California court that currently approves it. I had hoped and expected that the Supreme Court would give us some clear guidance in this area. After all, they are the highest court in California, and their mission is to interpret statutes and resolve important questions for the state, especially where there is a lack of clarity or disagreement. But they completely dodged this issue, even though it was before them. In the one case involving a prebirth judgment based on intent, they simply said that since both moms were parties to the original judgment, both of them are estopped from attacking it. As stated by the Court: "We need not decide ... whether the ... judgment is valid, because we conclude that Kristine is estopped from challenging the validity of that judgment." Then, in a footnote: "We address only whether Kristine is estopped from challenging the validity of the judgment. Nothing we say affects the rights or obligations of third parties, whatever they may be." Okay, what does that mean?? A party to the judgment can't go back and attack it, but it isn't necessarily a valid judgment and other people still have the right to attack it?? Is that supposed to make us feel confident about these judgments??? On the other hand, is that supposed to clarify that these judgments aren't valid and we should stop getting them, despite their benefits to our clients??? All of this is to say that there still is a lot of gray area left after the dust from these cases settles -- more, quite frankly, than I'd hoped for. So we haven't yet achieved Nirvana, folks. But we sure are better off than we were when I started practicing in this area!!! To sum up: THE BIG WINNERS: Children of lesbian couples, who now get to have two moms even if their mothers aren't registered domestic partners and even if their mothers didn't do a second parent adoption. (But please, please, please don't stop doing adoptions, folks. Remember, this was the California Supreme Court court we're talking about, not the U.S. Supreme Court. The rest of the country isn't exactly falling over itself trying to grant rights to lesbian and gay families. As the fundamentalists like to say, think about the children!) Also, lesbian couples engaged in ovum sharing (where one woman provides the eggs and the other carries the baby to term). The Court has unequivocally stated that these women are both natural mothers of their children. THE BIG LOSERS: I hate to say it, but I think the big losers here are gay men who are having children through surrogacy. I hoped we'd get some good, clear law here. We didn't. And gay men have to rely more on intent than lesbians, because gay men have no option to procreate without the involvement of a birth mother who may or may not have legal rights. And the court could have clarified when these birth mothers (aka surrogates) have rights and when they don't, but it chose not to. So we're no better off than we were before. So there you have it -- the "Wald's eye view" of the California Supreme Court decisions. Please let me know what you think....

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