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A lesbian mother who gave birth to twin girls with eggs donated by her domestic partner is the sole legal parent of the children, the 1st District Court of Appeal ruled Tuesday. The opinion upheld a Marin County, Calif., judge’s decision that the donor, referred to in court documents as K.M., relinquished her parental rights when she signed an egg donation consent form. The children have been living with their birth mother since 1998, when the couple separated. “The ultimate determination of natural motherhood depends not upon the existence of a binding contract but rather � upon the woman’s intention to bring about the birth of the child to raise as her own,” Justice Mark Simons wrote in K.M. v. E.G., 04 C.D.O.S. 3992. Justices Barbara Jones and Linda Gemello concurred. “What is legally relevant is the finding by the trial court that the parties’ understanding showed that they intended E.G. to be the one to bring about the birth of a child to raise as her own,” Simons wrote. K.M. was “devastated” by the ruling, said her attorney, Jill Hersh of Hersh Family Law Practice, adding that an appeal to the California Supreme Court is likely. “This woman had her children ripped away from her and has been made invisible. She’s naturally more than disappointed and feels like her children were let down by the legal system. There is no question in her mind that she is one of their mothers and nothing can change that.” E.G. tried on at least 12 occasions to get pregnant, according to the ruling, before her successful try in 1995 with K.M.’s donated eggs. The couple lived together in Marin County but split when the two argued over whether the twins should be told they were genetically related to both women. K.M. sued E.G. in 2001, seeking to be declared a legal parent and alleging that E.G. was planning to relocate to another state with the children. Shannon Minter, legal director of the National Center for Lesbian Rights, called the ruling discouraging. The decision that the girls have only one parent means that the children cannot visit their “ovum” mother, Minter said. The center filed an amicus curiae brief arguing that assisted reproduction laws should apply equally to both partners. “It wouldn’t be any less devastating if the court ruled that twins couldn’t see their father,” Minter said. “It’s cruel and causes a level of psychological harm that will haunt them the rest of their lives. And what if something happens to their birth mother � they are orphans.” Minter said she was nonetheless encouraged that “the court seemed favorably inclined to the proposition that when there is a clear intent to co-parent that both women could be legal parents.” Diana Richmond of Sideman & Bancroft, who represents E.G., said the ruling is a “complete vindication” for her client. “It preserves freedom of choice for same-sex partners,” she said. “Any other decision would have created messier laws that wouldn’t have done anyone good in the long run.” Richmond said that the children’s prior connection to K.M. does not mean she should have joint custody. “Many people form relationships with parental figures who live in their household, but that doesn’t give them the same status as a parent,” she said. “What contact exists after a relationship is over is up to the legal parent.” Richmond was unable to reach E.G. Tuesday morning to tell her the news but said, “I’m sure she will be very pleased and very gratified.” E.G. resides in Massachusetts with the girls. K.M. still lives in Marin County.

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