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A woman whose same-sex partner cut her out of the lives of the two twin girls they conceived together seems to have gotten the sympathy of three appeal court justices. But sympathy might be all they can offer. On Friday, justices on San Francisco’s First District Court of Appeal expressed concern that a woman identified only as E.G. could claim to be the girls’ sole mother even though she conceived them with eggs donated by her seven-year partner, identified only as K.M. Is that, they wondered, in the children’s best interests? “It is somewhat troubling to me that adults can fashion whatever rules they choose, despite the implications to the children,” Justice Mark Simons said. “And we don’t say at some point that shouldn’t be allowed, that they should have known that creates problems for the children, and is just not right. “But maybe,” he added, “it’s too late.” Court documents show that E.G. gave birth to the twins in 1995, after sperm from an anonymous donor was used to fertilize the eggs contributed by K.M. But in 2001, the two women broke up, and E.G. successfully blocked her former partner’s bid to be declared a legal co-parent. A Marin County Superior Court commissioner ruled that K.M. had no standing as a parent, partly because she had signed forms waiving her right to adopt the girls. The custody case could be the first to arise between two women with direct biological ties to the children. Ironically, while the custody battle raged in the appeal court, across the street at San Francisco City Hall hundreds of gay couples continued to get married, eight days after Mayor Gavin Newsom announced the city would begin issuing same-sex licenses. The parental rights case between E.G. and K.M. has attracted widespread interest. Friday’s hearing was packed to the walls — many in the audience were lesbians and Justices Simons, Barbara Jones and Linda Gemello allowed an extraordinary 75 minutes for arguments. Most don’t last more than 20 minutes. The justices immediately asked the lawyers to focus their statements on the issue of parental standing by K.M. and the effect of Johnson v. Calvert, 5 Cal.4th 84, a 1993 California Supreme Court ruling that said the parentage of a child in a surrogacy situation should be determined by the parties’ intent. The justices wanted to know if they were limited to looking at the couple’s intent in planning the children’s birth, or if they could go further. “Was the intent of their agreement that E.G. would be the mother and K.M. would not?” Simons asked. “Or are we looking at a later intent to raise the children as a family?” K.M.’s lawyer, Jill Hersh, of San Francisco’s Hersh Family Law Clinic, said the court could look at the two women’s interactions with the kids, not just what was discussed prior to their births. Hersh maintains that the children, who now live with their birth mother in Massachusetts, had a parent-child bond with her client. Hersh went on to say that the intent test that should be applied in the case isn’t any different than that used in Johnson. “It is the same test,” she argued, “with the opportunity to look at vastly more evidence of intent.” E.G.’s lawyer, Diana Richmond, told the court that the case was about “the choices people make and the consequences that flow forth from them.” The Sideman & Bancroft partner said that the intent in this case was “abundantly clear” from the outset, that E.G. would be the mother and that K.M. would voluntarily give up adoption rights. “Only unless there is something wrong with E.G. as a mother, if she’s unfit, can the state substitute its judgment for E.G.’s,” Richmond argued. She also argued that allowing K.M. to claim motherhood could open the doors to any number of awkward scenarios. What if a woman who wasn’t gay got her sister to provide eggs, then the two moved in together and the child and her aunt bonded? “Doesn’t that somehow vault the sister into the position of a parent?” Richmond asked. “But,” Justice Gemello countered, “you’re completely ignoring the intimate relationship the two women were in.” Isn’t it possible, she asked, that rather than E.G. claiming sole motherhood, the two could have gone through the process and still have raised the children together? “We live in a world where people can make either of those choices,” Richmond responded. But that’s not what happened. K.M. was a donor, Richmond argued, just as a man who provides sperm is a donor. “Women,” she said, “can make the same choices.” Richmond also said Simons was expressing a “sentimental notion” about “saving the family” when he asked about the children’s best interests. The two women had an oral contract, as well as a signed form that K.M. would not seek adoption. “Here the parties clearly said E.G. is to be the mother, and not K.M.,” she said. Hersh told the justices that even if they agree with the lower court’s findings, they could nevertheless fashion a ruling that would keep parental ties intact. “This court,” she said, “absolutely has the right and should recognize [that] my client is a presumed parent.” Afterward, Hersh said that she believes the court is trying to find a way to protect the children by keeping K.M. in their lives. “And,” she added, “I hope we pointed the way.” Richmond, meanwhile, said the interests of the children could not be used as a reason to override the birth mother’s decisions. “This court,” she said, “cannot substitute its judgment.” The case is K.M. v. E.G., A101754.

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