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Ethel Grand had tried getting pregnant through artificial insemination and other methods more than a dozen times before a San Francisco fertility doctor suggested in 1994 that she be implanted with her partner’s eggs. Grand agreed and one year later, following insemination by an anonymous sperm donor, gave birth to healthy twin girls. In 1996, the four settled into a new home in Corte Madera. A fairy tale ending? Nowhere near. Grand and her partner, Karen Mosely, split in 2001 after seven years together, and are now locked in a fierce custody battle in San Francisco’s First District Court of Appeal. The women, whose names were changed for this story, are listed in court papers only by initials. Even anonymously, though, their fight presents a novel issue for the court, in that both women — by nature of their unique pregnancy arrangement — are related biologically to the children. In most same-sex situations, one woman serves as the birth mother while the other agrees to become a parent through a so-called second-parent adoption. While many of the facts of the case are in dispute, court papers indicate that Grand and Mosely’s relationship grew troubled in 1998, when the two argued over whether the twins should be told they were genetically related to both women. Nothing was resolved, and Mosely sued Grand in 2001, seeking to be declared a legal parent and alleging that Grand was planning to relocate to another state with the kids. Grand filed a motion to dismiss on the ground that Mosely had no standing as a parent to bring her claim. Marin County Superior Court Commissioner Randolph Heubach granted Grand’s motion, finding that Mosely not only had no standing, but that there was clear and convincing evidence that the two women had agreed from the start that only Grand would be the sole mother. He based his decision largely on Grand’s insistence that she never intended to co-parent and Mosely’s signing of a form at the fertility clinic that waived her adoption rights. Absent adoption, Heubach ruled, Mosely has no standing as a parent. The case has polarized much of the Bay Area’s large, and growing, lesbian community — many of whom have become parents with their female partners through a variety of methods, including artificial insemination and in vitro fertilization. Mosely has the backing of San Francisco’s National Center for Lesbian Rights, which filed an amicus curiae brief with the appeal court in hope of clarifying the law in a field that’s getting increasingly complicated as more same-sex couples have children. “It’s right at the heart of everything we hope to establish in the law,” says Shannon Minter, NCLR’s legal director. “We very much want the courts to find that when a same-sex couple has a child together using assisted reproduction that they are both automatically parents — without the need for an adoption.” The First District hasn’t yet set oral argument in K.M. v. E.G., A101754, but briefing is complete and a date could be close. Mosely’s lawyer, Jill Hersh, of San Francisco’s Hersh Family Law Practice, says her client and the twins bonded and acted as parent and children in all ways, even to the point of them calling Mosely “Mama,” and treating Mosely’s mother and father as grandparents. She argues that Mosely entered into the arrangement with the full understanding she would be a parent, too. “People in same-gender relationships don’t have unplanned families,” Hersh says. “They are truly intentionally created families. “The court,” she adds, “hasn’t caught up with the reality of the kinds of families we have living in our communities.” Hersh and Minter hope to convince the appellate justices to follow the reasoning of the California Supreme Court in 1993′s Johnson v. Calvert, 5 Cal.4th 84, and the Fourth District’s follow-up in 1998′s In re Marriage of Buzzanca, 61 Cal.App.4th 1410. In Johnson, the high court held that in a surrogacy situation, in which a wife donated an egg fertilized by her husband, the parentage of the child should be determined by looking at the parties’ intent. In Buzzanca, the appeal court built on that in finding parentage for a married couple that used a surrogate to carry an embryo genetically unrelated to them. “Despite recognizing the ‘harsh consequences’ of its decision ‘on the innocent children born of the parties’ unusual arrangement,’ and that they would be ‘losers’ thereby,” Hersh wrote in court documents, “the [trial] court proceeded to deny those children the rights and protections they assuredly would have been afforded if they had been born into a marital family and the circumstances of their birth not ‘unusual.’” Minter of NCLR says that there are 116 trial court decisions in California that apply the holdings of Johnson and Buzzanca to same-sex couples. Grand’s lawyer, Diana Richmond of San Francisco, argues that Mosely is making up her story after the fact. Grand had made it clear, she says, that Mosely was going to have no parental rights over any offspring produced by the arrangement. That intent, Richmond says, is consistent with U.S. and California Supreme Court rulings regarding same-sex adoptions, grandparent access and stepparent adoptions. “It requires the affirmative act of an adoption for one partner to become the parent of the other’s child,” she said. Furthermore, Richmond argues, Mosely is bound by the contract she signed in waiving adoption rights. She points to another case in which two physicians got pre-approval of their joint motherhood at the outset. “If the [appeal] court were to adopt K.M.’s arguments,” the Sideman & Bancroft partner says, “then no matter what agreement people made at the outset could be undone by later behavior. And, as we learned from the trial, later behavior is subject to two radically different viewpoints.” In court papers, Richmond also argued that a biological link alone doesn’t confer constitutional protection on Mosely. “Wishful thinking,” she wrote, “does not trump the terms of an agreement.” Minter countered in the NCLR’s brief by arguing that the form Mosely signed at the fertility clinic was created for entirely different situations than that of Mosely and Grand. “The standard hospital form,” he wrote, “was created for situations in which a woman was donating her egg to another woman she did not know or have any information about, with no intention of parenting or having any relation with the resulting child.” “The evidence presented in this case,” he continued, “clearly shows that K.M. was an intended parent, not a donor.” A separate amicus was filed by the National Association of Counsel for Children and the Northern California Association of Counsel for Children. In that brief, the agencies argued that the trial court erred by not having a separate lawyer representing the twins’ interests. “This omission was a denial of due process and prejudicial error,” San Francisco lawyer Donna Furth wrote in court papers. Both Hersh and Richmond contend that the agencies’ argument is off point because that was not at issue at trial. “If parentage is established for both children and we go back to court on custody and visitation,” Hersh says, “there might be a scenario where counsel would be appointed for the children.” For the time being, the twins, who will turn 8 on Dec. 7, are living with Grand in Massachusetts. Richmond said her client has been “quite forbearing in permitting regular visits despite a number of boundary provocations.” Hersh, meantime, calls Mosely “a very brave and despondent woman.” “She’s very determined,” Hersh says. “She believes that she’s going to see this through, and that for the sake of her children she did everything she possibly could.”

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