Calif. court hears same-sex custody cases

SAN FRANCISCO -- California's Supreme Court edged toward the debate over gay marriage yesterday by taking up three child custody and support disputes between lesbians who had been couples.

The three lawsuits center on how same-sex couples who may not wed legally in the state and who have not registered as domestic partners may establish rights as parents or be held to parental responsibilities after parting ways.

The cases are further complicated by legal issues involving children conceived by artificial insemination. The court will consider whether the decisions by lower courts to side with birth mothers in heterosexual custody fights should apply to lesbian couples.

Rulings in the cases will help clarify parental rights for same-sex couples, especially those establishing households that are not registered with the state, according to lawyers.

Additionally, by taking up the three cases, the California court may be signaling that it is supportive of same-sex marriage. The California debate on such marriages has been thrust into the national spotlight by the same-sex nuptials authorized by San Francisco's mayor, Gavin Newsom, whose office is across the street from the court.

''It makes me optimistic," said Diana Richmond, a San Francisco lawyer who represents one of the women whose case was heard by California's Supreme Court.

The court must wrestle with lawsuits predating the state's domestic partnership law. That law gives registered same-sex couples many of the rights of married heterosexuals, but does not cover couples who broke up before this year or who do not file as domestic partners and raise children.

California's justices -- including Janice Rogers Brown, one of the Bush administration's top choices for a federal court posting -- peppered lawyers with questions in three back-to-back sessions. Some questions suggested that state law from the 1970s has not kept up with advances in reproductive technology, and some hinted that laws used by gay couples to claim parental status may be too vague.

In one of the disputes, a woman identified only as K.M. donated eggs to her partner. The eggs were fertilized by sperm from an anonymous donor, resulting in twin girls. K.M. and her partner raised the twins for more than five years before separating.

K.M. is seeking recognition as a parent. A state appeals court last year backed her partner as sole parent because K.M. had signed a fertility clinic form waiving legal claims to her eggs. ''Functioning as a parent does not bestow legal status as a parent," the court held.

Gay rights and children's advocates maintain that adults who help bring children into the world with the intent of raising them should be regarded as parents, regardless of sexual orientation, marital status, or blood ties.

Yet, lower courts, absent adoption papers or a formal domestic partnership, have shied away from recognizing the nonbiological parent in a broken, gay family.

''To the child, a parent is a parent because that is the person who got up in the night and held them and put Band-Aids on their knees," said Deborah Wald, a San Francisco family law lawyer.

''California is so clear about that when we are dealing with a mother and father, but when it comes to lesbian couples, the courts have been the scalpel to remove children from the parents they deeply bonded to."

Lawyers for the women whose cases are before the court argue that the situations are not analogous. Laws intended to establish parentage in circumstances where both mother and father played a biological role can't be applied so easily to situations where conception required the use of reproductive technology, by necessity leaving one partner without a biological connection, they maintain.

In a sign of the acceptance that same-sex parents have in California, the state attorney general's office supported the mothers who asked the justices for an updated interpretation of the state's parental rights laws. Several child-advocacy organizations filed friend-of-the-court briefs taking the same side.

Courtney Joslin of the National Center for Lesbian Rights, who argued one of the cases before the court, said, ''All children, not only those born to married or heterosexual parents, must have a legal right to support and care from both people who brought them into the world."

''There are hundreds of thousands of couples, including many same-sex couples, who rely on assisted reproduction to have children," Joslin said. ''Without question, those parent-child relationships are just as authentic and real as any others, and they should be protected equally."

It's unclear how many same-sex couples would be affected by the rulings.

Material from the Associated Press was included in this report.