Private grief, public progress

AP

Emily B, defending her own

CONSERVATIVES may well triumph in the big set-piece battles over gay marriage; but gay couples are winning less conspicuous battles when it comes to making gay family life more normal. Three decisions this week by California's Supreme Court mean the state becomes the first in the nation to give lesbian parents, when their relationships end, the same rights—and obligations—as heterosexual parents have when they split up.

The first case involves a couple in El Dorado, Elisa B. and Emily B., who had both given birth through artificial insemination from the same donor and who even breastfed each other's children. When they split up in 1999, Elisa left for San Francisco with her son, but gave financial support to Emily and her twins. This support stopped in 2001 and when Emily applied to El Dorado County for welfare benefits, the county pressed Elisa for child support. The State Supreme Court unanimously took the county's side, noting that three years ago it had ruled that men were entitled to be legal fathers even if they had not helped conceive the child: “What is sauce for the gander,” wrote Justice Joyce Kennard, “is sauce for the goose.”

A second ruling, also unanimous, centres on legal technicalities. Kristine H., the biological mother of her daughter, did not have the right, the judges decreed, to challenge a lower-court decision that had granted parenting rights to Lisa R., her former partner, including Lisa's name on the child's birth certificate in the space marked “father”.

But the most intriguing opinion, in which the court ruled by a 4-2 vote, was that K.M., a woman who provided eggs to her partner, E.G., was legally also the mother of the twin girls subsequently conceived through artificial insemination. Although K.M. had “explicitly donated her ovum under a clear written agreement by which she relinquished any claim to offspring born of her donation,” the court agreed that she had the right to change her mind and “establish a parental relationship”.

So what next? One possibility is an appeal by E.G.'s lawyer to the federal Supreme Court, on the grounds that the Californian ruling violates the constitution's equal protection clause. After all, under state law a man who donates semen to a woman who is not his wife does not become a legal father, so why should a woman who donates an egg become a legal mother? The court's ruling, argued one of the dissenting judges, “inappropriately confers rights and imposes disabilities on persons because of their sexual orientation.”

The Campaign for Children and Families, which is lobbying to place an initiative on the California ballot in June next year to ban same-sex marriage, denounced the rulings as “against nature”. No less predictably, the National Centre for Lesbian Rights said the court's action was a victory “for children, for parental responsibility and for common sense”.