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Filed 5/10/04
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

K.M.,

Plaintiff and Appellant,
A101754

v.

E.G.,
(Marin
County

Super. Ct. No. CV 020777)
Defendant
and
Respondent.

Appellant K.M. donated her eggs so that her lesbian partner, E.G., could bear a
child through in vitro fertilization. The couple orally agreed that only E.G. would be the
legal parent unless and until there was a formal adoption. E.G. gave birth to twins, and
both women took on parental responsibilities; adoption proceedings, however, were never
initiated. While K.M. does not dispute that E.G., the birth mother, qualifies as the
children's parent, she argues that as the genetic mother, she, too, qualifies as a parent
entitled to custody and visitation. Because we believe that the "intention" test set out in
Johnson v. Calvert (1993) 5 Cal.4th 84, 93 (Johnson) governs and because substantial
evidence supports the trial court's factual finding that only E.G. intended to bring about
the birth of a child whom she intended to raise as her own, we conclude that K.M. does
not qualify as a parent under the Uniform Parentage Act (Fam. Code, § 7600 et seq.).

1

FACTUAL AND PROCEDURAL HISTORY
In accordance with established principles of appellate review, we construe the
evidence in the light most favorable to the trial court's judgment, resolving all conflicts
and drawing all inferences in favor of the judgment. (Rodney F. v. Karen M. (1998) 61
Cal.App.4th 233, 241.)
K.M. and E.G. entered into an intimate relationship in June 1993 and began living
together in March 1994. They registered as domestic partners in San Francisco in
October 1994. Well before her relationship with K.M., E.G. had explored ways of having
a child on her own, including artificial insemination and adoption. E.G. told K.M. of her
efforts to become a single parent, and K.M. was "encouraging and supportive." The
parties discussed and agreed that E.G.'s intention was to have a child of her own. A
mutual friend of theirs was then involved in a child custody dispute with her lesbian
partner, and E.G. wanted to avoid any such battle.

During the period from July 1993 to November 1994, E.G. was unsuccessfully
artificially inseminated at fertility clinics 12 times. K.M. accompanied E.G. to all the
appointments and reviewed the potential sperm donors with E.G. In December 1994,
E.G. was referred to a fertility practice at U.C.S.F. Medical Center ("U.C.S.F.").
Attempts at in vitro fertilization using E.G.'s eggs and sperm from a donor failed,
because E.G. was unable to produce enough eggs to achieve pregnancy. At this same
time, K.M. was having problems with fibroids in her uterus and was seen by the same
medical group at U.C.S.F. E.G.'s doctor suggested that E.G. might want to attempt in
vitro fertilization with K.M.'s eggs. E.G. was reluctant to do so because the couple's
relationship was still new, and she did not want a custody battle in the future with K.M.
Eventually, however, E.G. asked K.M. to donate her eggs, provided that K.M. would be a
"real donor" and E.G. would be the only legal mother. The parties discussed the
possibility of a future adoption by K.M. E.G. said she would consider adoption by K.M.
but not for at least five years, when she felt the relationship was stable and permanent.
K.M. agreed to E.G.'s terms and made no request to be a legal parent.

2

In February 1995, E.G. received in the mail from U.C.S.F. consent forms for both
an ovum donor and an ovum recipient. The introductory paragraph of the four-page
Consent Form for Ovum Donor (Known) provides: "I will agree to have eggs taken from
my ovaries, in order that they may be donated to another woman." Under the heading
"What will happen to me?," a detailed description of the egg retrieval process concludes
with the sentence, "The recipient will have control over the disposition of all retrieved
eggs and resulting embryos." On page 3, the same page where the donor is required to
fill in blanks about the donor's medical history, the form states: "It is understood that I
waive any right and relinquish any claim to the donated eggs or any pregnancy or
offspring that might result from them. I agree that the recipient may regard the donated
eggs and any offspring resulting therefrom as her own children." On page 4, the
signature page, the form states: "I specifically disclaim and waive any rights in or [to]
any child that may be conceived as a result of the use of any ovum or egg of mine, and I
agree not to attempt to discover the identity of the recipient thereof. [¶] I waive the right
of relationship or inheritance with respect to any child born of this procedure . . . ."

K.M. and E.G. reviewed the forms with each other in the weeks prior to signing.
E.G. told K.M. she was relying on the provision concerning relinquishment of parental
rights. The standard procedure for egg donation at U.C.S.F. called for the egg donor to
meet with a psychologist for counseling. K.M. and E.G. attended the counseling session
together on February 14, 1995. After meeting with the counselor, K.M. and E.G. talked
about what they would disclose publicly about the parentage of a child formed from
K.M.'s donated eggs. They agreed to tell the child eventually that K.M. was the genetic
mother, but they agreed that E.G. would decide when it was appropriate to do so. They
also agreed not to tell other people that K.M. was the egg donor and to reveal only that
E.G. was the mother.

On March 8, 1995, the parties went to U.C.S.F. to begin the procedure for retrieval
of K.M.'s eggs. At the hospital, K.M. was given a copy of the ovum donor consent form
to review and sign. K.M. signed the form and then had blood drawn, the first step in the
egg retrieval procedure.

3

In April 1995, about a month after signing the ovum donor consent form, K.M.
underwent the egg retrieval procedure at U.C.S.F. Three days after that procedure, K.M.
gave E.G. an Easter card with a picture of eggs on the front and with a handwritten note
inside: "To my Boss[, a] most memorable Easter that we share together[,] a gift of
unconditional love and of life." K.M.'s eggs were fertilized in vitro with sperm from an
anonymous donor, and four of the resulting embryos were implanted in E.G.'s uterus.
The procedure was successful, and E.G. became pregnant with twin girls. In September
1995, K.M. gave E.G. a card stating "I look so forward to the day that I meet your two
daughters." (Underscoring in original.)

E.G. gave birth to the twins on December 7, 1995. Soon afterward, E.G. asked
K.M. to marry her, and on Christmas Day the couple exchanged rings.

The hospital records from the time of the delivery refer to the "parents" in the
plural, e.g., "Both moms in to visit." However, E.G. listed only herself on the birth
certificates as the mother, and the children were given E.G.'s surname. E.G. was also
listed as the only parent on the children's baptismal certificates. K.M. was not mentioned
during the baptism ceremony. Within a month of their birth, E.G. added the children as
beneficiaries to her health care, dental, vision, and life insurance plans and to her
retirement plan. K.M. had a life insurance policy and small retirement plan, but she
never changed the beneficiaries to name the children.1

Before the twins were born, some friends held a baby shower honoring both E.G.
and K.M. After the birth, E.G. and K.M., as a couple, received other congratulatory cards
and gifts. But E.G. never revealed to her friends or family that K.M. was the egg donor.
Nor did K.M. disclose that she was genetically related to the children, even though the
children came to refer to K.M.'s parents as "Granny" and "Papa."

For the next five years, E.G. and K.M. and the twins continued to live together as
a family unit. There is no dispute that K.M. acted as an affectionate mother to the girls,

1 K.M. had health coverage through E.G. and could not get additional life insurance
because of her medical history.

4

and that the girls are emotionally attached to her. The couple agreed to refer to E.G. as
"Muma" and to K.M. as "Boss" or her first name, and those are the terms the girls came
to use.2 E.G. and K.M. purchased a house together in Marin County and enrolled the
children in preschool there. E.G. listed K.M. as a "co-parent" on the school enrollment
forms. However, it was E.G. who signed the enrollment forms and paid the preschool
tuition. Both E.G. and K.M. took the children to pediatric appointments. However, they
never revealed to the children's pediatrician that K.M. was genetically related to the girls.

In 1998 the parties argued about whether or how to tell the girls that they were
genetically related to K.M. E.G. asserted she would never tell them and insisted she was
their only legal mother. E.G. referred to the waiver of rights on the ovum donor consent
form and told K.M. she had no legal rights without adoption. In 2000, as the girls' fifth
birthday approached, K.M. became insistent that she wanted to adopt, but E.G. had
misgivings. The couple also disagreed about relocating to Massachusetts. By March
2001, the couple had separated, and E.G. filed a notice of termination of the domestic
partnership. K.M. filed a petition to establish a parental relationship with the girls,
seeking, among other things, to prevent E.G. from taking the children to Massachusetts.
She voluntarily dismissed that petition in July 2001, when she and E.G. resumed living
together and tried to resolve their differences. K.M. and E.G. then continued to live
together until August 2001, when E.G. moved with the girls to Massachusetts. E.G.
listed K.M. as a parent on the Massachusetts school forms. K.M. and E.G. each paid half
the tuition for the Massachusetts school.

In February 2002, K.M. filed a new petition to establish a parental relationship.
She also sought joint custody. In response, E.G. filed a motion to quash and dismiss the
petition on the ground that K.M. lacked standing to assert parentage. Pending trial, the
parties stipulated to orders for visitation by K.M. in Massachusetts.

2 Only after the litigation commenced did K.M. start referring to herself as "Mama
Boss."

5

K.M.'s testimony at trial created a sharp conflict in the evidence. K.M. testified
that from the beginning of their relationship she and E.G. planned to have children
together. E.G. was to bear the child, because K.M. was not able to carry a child. K.M.
denied any discussion with E.G. that E.G. would be the sole parent. However, K.M.
conceded that when they met, E.G. was actively trying to get pregnant and E.G.'s then-
pending adoption application did not involve her. She also conceded that E.G. was
reluctant at first to have children with K.M. because their relationship was too new. K.M.
testified that E.G.'s reluctance to use K.M.'s eggs was based on a concern that the child
would resemble K.M. and then E.G. would have to reveal to her own mother that she is a
lesbian.

K.M. acknowledged that before the egg retrieval procedure the parties had many
conversations about egg donation and about adoption. K.M. testified that both she and
E.G. intended to be the parents of any child formed from K.M.'s eggs. K.M. also
testified, on the one hand, that the parties discussed the need for adoption to make K.M. a
legal parent, and, on the other hand, that she believed adoption was unnecessary because
of her genetic connection to the children. K.M. denied any agreement that the children
would be E.G.'s alone.

K.M. denied going over the ovum donor consent form with E.G. in advance of
signing. She testified that she first received the form at the hospital and signed it within
minutes, believing it was a pro forma matter that was necessary to proceed with the egg
retrieval. K.M. has a master's degree and conceded that she understood the language of
the donor consent form. She was aware of the language concerning relinquishment of
parental rights and understood that her legal rights were affected by the form. However,
she did not intend to relinquish her parental rights; she thought the language of the donor
form would not apply to her because she knew the recipient. She made no request to
E.G. or to U.C.S.F. to change the form. She did understand and agree that E.G. would
have control of any embryos formed through in vitro fertilization.

K.M. denied that the parties had an agreement about disclosing K.M.'s genetic
connection to the children. However, she acknowledged that, with one exception, she did

6

not tell anyone, even her own family, that she was the egg donor until her relationship
with E.G. ended. In 1998, when she and E.G. began having disagreements about telling
the children, K.M. told one friend that E.G. could not have become pregnant without her,
but K.M. did not directly say she was the egg donor. In 1999, K.M. told her therapist and
the friend that she was the egg donor. And in 2001, as her relationship with E.G. was
ending and after the couple had attended counseling sessions, K.M. told the children,
over E.G.'s objection, that she was their genetic mother.

After a seven-day trial, the trial court issued a lengthy and thoughtful opinion
buttressed with numerous factual findings, resolving the disputed facts and concluding
that K.M. was not a legal parent. The trial court found that K.M. relinquished her claim
to parentage when she knowingly, voluntarily and intelligently signed the ovum donor
consent form. Further, the court found that the parties agreed E.G. would be the sole
legal parent and their agreement was not modified by their conduct. Accordingly, the
court ruled that K.M. lacked standing, and the court granted E.G.'s motion to quash and
dismiss the petition. K.M. appeals.
DISCUSSION
Introduction

The Uniform Parentage Act (UPA) was adopted by the Legislature in 1975 to
eliminate the distinction between legitimate and illegitimate children. (See Johnson,
supra, 5 Cal.4th at pp. 88-89.) The act provides a means of establishing the "parent and
child relationship," which is defined as "the legal relationship existing between a child
and the child's natural or adoptive parents incident to which the law confers or imposes
rights, privileges, duties, and obligations." (Fam. Code, § 7601.) The UPA is not
confined to a determination of paternity. Under the act, the "parent and child
relationship" expressly includes the mother and child relationship. (Fam. Code, §§ 7601,
7610, subd. (a), 7650.) Although the act was not adopted to resolve issues that arise
under modern reproductive technology, our Supreme Court has said that the act should be
used even for the rare case such as the one before us in which, because of new biological
possibilities, a child's maternity is in dispute. (Johnson, at p. 89.)

7

I. STANDING

Though we affirm the trial court, we disagree with its ruling that K.M. lacked
standing to bring the action to determine parentage under the UPA. The UPA provides
that "[a]ny interested person" may bring an action under the UPA to determine the
existence of a mother and child relationship. (Fam. Code, § 7650.)3 Two appellate
courts have held that the lesbian partner of a child's natural mother, being genetically
unrelated to the child, is not an "interested party" and has no standing to bring the mother
into court under the UPA. (West v. Superior Court (1997) 59 Cal.App.4th 302, 306;
Curiale v. Reagan (1990) 222 Cal.App.3d 1597, 1600; but see Nancy S. v. Michele G.
(1991) 228 Cal.App.3d 831, 835, fn. 2 (Nancy S.).) Similarly, two other courts have held
that the wife of a sperm provider, with no genetic relationship to the child, is not an
interested party under the UPA. (Robert B. v. Susan B. (2003) 109 Cal.App.4th 1109,
1115-1116; Prato-Morrison v. Doe (2002) 103 Cal.App.4th 222, 229.) In Johnson,
however, the Supreme Court impliedly recognized that a woman with genetic
consanguinity has a colorable claim to parentage and qualifies as an interested party in a
parentage dispute with the birth mother. (Johnson, supra, 5 Cal.4th at pp. 90, 92-93.)
Here, in light of K.M.'s genetic connection to the children, we conclude that K.M.
qualified as an "interested party" for purposes of obtaining a judicial declaration of her
status as a parent.

On the merits, however, as we explain, the trial court properly concluded after a
full evidentiary hearing that E.G. was the only legal parent. Once the trial court made the
substantive determination that K.M. was not a legal parent, the court lost jurisdiction to

3 An action to determine the existence of the father and child relationship may be
brought by a child, the child's natural mother, or a man statutorily presumed to be the
child's father. (Fam. Code, § 7630, subd. (a).) "Any interested party" may bring an
action to determine the parental relationship between a child and a man who receives the
child into his home and openly holds out the child as his natural child. (Fam. Code,
§ 7630, subd. (b).)

8

award custody or visitation to her and properly dismissed K.M.'s petition. (West v.
Superior Court, supra, 59 Cal.App.4th at p. 305; Curiale v. Reagan, supra, 222
Cal.App.3d at p. 1600.)
II. THE NATURAL MOTHER: THE JOHNSON TEST

The UPA recognizes a legal parental relationship for two kinds of parents--
"natural" and "adoptive." (Fam. Code, §§ 7601, 7610; Johnson, supra, 5 Cal.4th at p. 89;
see also Nancy S., supra, 228 Cal.App.3d at pp. 835-836, 841.) The parent and child
relationship for the "natural mother" may be established "by proof of her having given
birth to the child, or under [the UPA]." (Fam. Code, § 7610, subd. (a).) The California
Supreme Court has rejected the notion that only the woman who gives birth to a child
qualifies as the "natural" mother: "The disjunctive `or' indicates that blood test evidence
[reflecting genetic consanguinity], as prescribed in the Act, constitutes an alternative to
proof of having given birth." (Johnson, at p. 92.) The court explained as follows: "In
our view, the term `natural' as used in [subdivision (a) of Family Code section 7610]
simply refers to a mother who is not an adoptive mother. [Section 7610] does not purport
to answer the question . . . who is to be deemed the natural mother when the biological
functions essential to bringing a child into the world have been allocated between two
women." (Johnson, p. 92, fn. 9.)
In
Johnson, the court analyzed the concept of "natural mother" within the context
of a surrogacy agreement. An embryo created by the gametes of a married couple was
implanted in the uterus of another woman, who had agreed by written contract to bear the
child but to relinquish all parental rights. When the surrogate changed her mind and
refused to surrender the child, the married couple sought a declaration of parentage under
the UPA. The Supreme Court acknowledged that both women had acceptable proof of
maternity--one had given birth to the child and the other had genetic consanguinity.
(Johnson, supra, 5 Cal.4th at pp. 92-93.) But the court expressly declined to find that a
child can have two natural mothers. (Id. at p. 92, fn. 8.) The court said that "for any
child California law recognizes only one natural mother, despite advances in reproductive

9

technology rendering a different outcome biologically possible." (Id. at p. 92; see also In
re Marriage of Moschetta (1994) 25 Cal.App.4th 1218, 1224.)4
The
Johnson court resolved the competing maternity claims of the genetic mother
and the surrogate birth mother by examining the parties' intentions as manifested in the
surrogacy agreement. The court emphasized that it was the married couple who
affirmatively intended the birth of their child and took steps to effect in vitro fertilization,
while the surrogate mother simply intended to facilitate the procreation of the couple's
child. It was the genetic mother who "from the outset intended to be the child's mother."
(Johnson, supra, 5 Cal.4th at p. 93.) Quoting from a law review article,5 the Johnson
court explained that, " `Within the context of artificial reproductive techniques,'. . .
intentions that are voluntarily chosen, deliberate, express and bargained-for ought
presumptively to determine legal parenthood." (Id. at p. 94.) The Johnson court
articulated the test of maternity as follows: the woman who intended to procreate the
child--to bring about the birth of a child whom she intended to raise as her own--is the
natural mother under California law. (Id. at p. 93.)6 In subsequent cases, the appellate

4 Johnson, of course, dealt only with the concept of a child's "natural mother" and did
not touch upon the concept of an adoptive parent. More recently, the Supreme Court has
held that a child may have two adoptive mothers. (Sharon S. v. Superior Court (2003) 31
Cal.4th 417, 435.) The Legislature confirmed the point by expressly providing that a
domestic partner may, with the consent of the birth parent, adopt the child of his or her
domestic partner under the same procedure used for a stepparent adoption. (Fam. Code,
§§ 9000, subds. (b) & (f), 9003, 9006, subd. (b).) The present case does not pertain to
parentage by adoption.
5 Shultz, Reproductive Technology and Intent-Based Parenthood: An Opportunity for
Gender Neutrality 1990 Wis. L. Rev. 297, 323.
6 Johnson also quoted from Note, Redefining Mother: A Legal Matrix for New
Reproductive Technologies (1986) 96 Yale L.J. 187, 196 (Note): "The mental concept of
the child is a controlling factor of its creation, and the originators of that concept merit
full credit as conceivers." (Johnson, supra, 5 Cal. 4th at p. 94.) Johnson seemed to view
this formulation as synonymous with the intention test. Certainly, the author of the Note
so viewed it. (Note, at pp. 196-197.) Both Johnson and the Note focused on
reproduction through use of a surrogate. (Note, at p. 188.) In that context, determining
the originators of the mental concept of the child seems to work well. In a context like

10

courts have construed the Johnson test to mean that the intent to be the parent is the "tie-
breaker" when two women have equal claims. (Robert B. v. Susan B., supra, 109
Cal.App.4th at pp. 1115-1116; see also In re Marriage of Buzzanca (1998) 61
Cal.App.4th 1410, 1421-1422.)
III. THE PARTIES' PARENTAGE INTENTIONS
A.

Expressions of Intention

The trial court made two significant factual findings that defeat K.M.'s assertion
that she intended to be the parent of a child produced from her egg. First, K.M. orally
agreed before the children were conceived that E.G. would be the sole legal parent unless
and until the parties underwent formal adoption proceedings. Second, K.M. signed a
donor consent form in advance of the egg donation procedure in which she expressly
waived any parental rights that might attach to her genetic connection to a child formed
by her ovum.

1. The Oral Agreement

K.M. argues that the oral agreement between K.M. and E.G. concerning K.M.'s
parental status is unenforceable for a number of reasons: lack of consideration,
unconscionability, indefinite terms, and violation of the statute of frauds. The arguments
are beside the point. The present action brought under the UPA is not an action to
enforce a contract; the determination of parentage does not rest upon a binding agreement
between the parties. (Cf. Dunkin v. Boskey (2000) 82 Cal.App.4th 171, 190 [contractual
father sought damages for breach by mother].) To the contrary, Family Code section
7632 states: "Regardless of its terms, an agreement between an alleged or presumed
father and the mother or child does not bar an action under this chapter [on determining a
parent and child relationship]." Although that provision refers to an agreement by the

our own, where K.M. and E.G. had a committed relationship at the time of conception,
employing this same determination in the analysis might prove unhelpful. Johnson's
reference to the originator of the mental concept of the child should not be misinterpreted
to mean that parentage will be conferred on the person in the relationship who first
suggested that the couple have and raise a child of their own.

11

alleged father, we conclude that the statute should apply equally to an agreement by a
woman alleged to be the child's second mother. (Fam. Code, § 7650; see In re Karen C.
(2002) 101 Cal.App.4th 932, 938, 939.)7 The clear purpose of Family Code section 7632
is to preclude parents from foreclosing a judicial determination of parentage. (County of
Shasta v. Caruthers (1995) 31 Cal.App.4th 1838, 1849 [mother's settlement with father
did not preclude paternity determination and support award]; see also In re Marriage of
Buzzanca, supra, 61 Cal.App.4th at pp. 1426-1428 [wife's promise to assume all
responsibility for child born of surrogate did not abrogate husband's duty to support].)

The ultimate determination of natural motherhood depends not upon the existence
of a binding contract but rather, as Johnson instructs, upon the woman's intention to
bring about the birth of the child to raise as her own. (Johnson, supra, 5 Cal.4th at p. 93;
see also Robert B. v. Susan B., supra, 109 Cal.App.4th at pp. 1115-1116; In re Marriage
of Buzzanca, supra, 61 Cal.App.4th at pp. 1421-1422.) This distinction between an
expression of intention and an enforceable contract is apparent in the Supreme Court's
recent opinion on the doctrine of equitable adoption. (Estate of Ford (2004) 32 Cal.4th
160.) In holding that the doctrine applies only when the evidence establishes an intention
to adopt, the court explained that the claimant need not prove all the elements of an
enforceable contract: "This intent [to adopt] may be shown, of course, by proof of an
unperformed express agreement or promise to adopt. But it may also be demonstrated by
proof of other acts or statements directly showing that the decedent intended the child to
be . . . a legally adopted child . . . ." (Id. at p. 171.)
In
Johnson, the court looked to the parties' written surrogacy agreement to
determine the parties' intentions on parentage. In the present case, the trial court found in
the parties' oral expressions an intention that E.G. would be the only legal parent unless
and until an adoption by K.M. It makes no difference whether the parties' oral
expressions would be an enforceable agreement under contract law. What is legally

7 Family Code section 7650 provides that "[i]nsofar as practicable, the provisions of
[the UPA] applicable to the father and child relationship apply" to the mother and child
relationship as well.

12

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 child.

2. The Ovum Donor Consent Form

K.M. makes several challenges to the validity of the ovum donor consent form.
First, she contends the donor consent form did not give her adequate notice that she was
waiving her parental rights. Further, she argues the donor form was a contract of
adhesion and unconscionable. K.M. insists that by signing the form she was not
indicating any intent to waive her parental rights. These arguments are curtailed on
appeal. Despite K.M.'s testimony to the contrary, the trial court found the evidence to be
clear and convincing that K.M. signed the donor consent form and waived her parental
rights "knowingly, voluntarily and intelligently." The court found K.M.'s testimony on
her execution of the donor form "contradictory and not always credible." Further, the
court found the relinquishment of parental rights contained in the donor form "clear."
We are bound to accept the trial court's resolution of conflicting evidence as long as the
court's findings are supported by substantial evidence.

The record contains sufficient evidence to support the factual findings. E.G.
testified that she and K.M. carefully reviewed in advance the ovum donor consent form
and its provisions concerning relinquishment of parental rights. The parties stipulated
that the customary practice at U.C.S.F. is to send the forms one month before the initial
appointment. K.M. never objected to the terms of the donor consent form to E.G. or to
the U.C.S.F. medical personnel, even though she participated in counseling two weeks
before signing the form and did not undergo the egg retrieval procedure until a month
afterward. K.M. admitted in her testimony that she understood the language of the donor
consent form, and the trial court could reasonably disbelieve K.M.'s testimony that she
did not understand the legal implications of that language. The evidence was undisputed
that until 1999 neither party disclosed to others K.M.'s genetic connection to the children
and K.M. never listed the children as beneficiaries of her life insurance policy or
retirement plan. That evidence serves to show that K.M. understood her relinquishment
of parental rights. Certainly, as K.M. emphasizes, there was evidence that family and

13

friends regarded K.M. and E.G. as a couple raising the children together. But evidence
that K.M. was E.G.'s domestic partner and helped raise the children does not preclude a
finding that K.M. understood and agreed that E.G. would be the only legal parent.

Next, K.M. challenges the trial court's ruling that the donor consent form was a
valid contract made between K.M. and U.C.S.F. to which E.G. was a third party
beneficiary. K.M. argues that the donor consent form is unenforceable as a third party
beneficiary contract because it did not express an intent to benefit E.G. As we have
already determined in connection with the oral agreement between K.M. and E.G., the
effectiveness of the donor consent form as a binding contract is not the question here.
The consent form clearly reflects that K.M. donated her eggs as a gift. (Cf. Health & Saf.
Code, § 7150 et seq. [organ and tissue donations].) The consent form is a Consent Form
for Ovum Donor. The opening paragraph of the donor consent form stated that K.M., as
ovum donor, was "helping an infertile woman achieve a pregnancy" and agreeing to have
her eggs taken and "donated to another woman." As between K.M. and E.G., the donor
consent form is legally relevant as a written manifestation of the parties' intentions on
parentage.8 The donor consent form confirms that E.G. was intended to be the natural
mother and sole legal parent, while K.M. was the ovum donor.

Finally, K.M. argues that insofar as the donor consent form constitutes a waiver of
her rights to parental status, the document violates her constitutional right to procreate.
The argument is not persuasive. Nothing in the donor consent form precluded K.M. from
bringing about the birth of another child she intended to raise as her own child. The form
simply reflects K.M.'s intention that she would not be the legal mother of any child
formed from eggs donated to E.G.
In
Johnson, the Supreme Court observed as follows: "The argument that a woman
cannot knowingly and intelligently agree to gestate and deliver a baby for intending

8 The ovum donor consent form may have other implications as between the ovum
donor and U.C.S.F. The donor consent form provides the patient's informed consent to
the egg retrieval procedure and allows the medical center to assure a prospective recipient
that the donor has no legal claim of parentage.

14

parents carries overtones of the reasoning that for centuries prevented women from
attaining equal economic rights and professional status under the law. To resurrect this
view is both to foreclose a personal and economic choice on the part of the surrogate
mother, and to deny intending parents what may be their only means of procreating a
child of their own genes. Certainly in the present case it cannot seriously be argued that
Anna [the surrogate], a licensed vocational nurse who had done well in school and who
had previously borne a child, lacked the intellectual wherewithal or life experience
necessary to make an informed decision to enter into the surrogacy contract." (Johnson,
supra, 5 Cal.4th at p. 97.)

There is no reason K.M. should be found incapable of making the informed choice
to donate her eggs to another woman who intended to be the sole legal parent. In fact, the
status of K.M. under the donor consent form and the parties' agreement is consistent with
the status of a sperm donor under the UPA, i.e., "treated in law as if he were not the
natural father of a child thereby conceived." (Fam. Code, § 7613, subd. (b); see
discussion, post.) No public policy is violated by an agreement treating an egg donor in
the same way. (Cf. Dunkin v. Boskey, supra, 82 Cal.App.4th at pp. 183-192 [contract by
mother to grant paternal rights to male partner was not invalid].)
B.

The Parties' Relationship

We recognize, as K.M. emphasizes, key factual differences between Johnson and
the present case. In Johnson, the genetic mother was married to the genetic father, while
the surrogate birth mother was a stranger to that established relationship. In contrast,
K.M. and E.G. had a committed relationship with each other that antedated the
conception of the children, and the parties planned to provide together a stable and
nurturing home for the children.

As we read Johnson, the nature of the relationship between the genetic parents and
the birth mother in that case was relevant insofar as it cast light on the parties' parentage
intentions. That is, the genetic mother was held to be the natural mother because under
the surrogacy arrangement it was she who intended to bring about the birth of the child.
(Johnson, supra, 5 Cal.4th at p. 93.) In a footnote, the court commented that "in a true

15

`egg donation' situation, where a woman gestates and gives birth to a child formed from
the egg of another woman with the intent to raise the child as her own, the birth mother is
the natural mother under California law." (Id. at p. 93, fn. 10.) K.M. does not dispute
that E.G., who gestated and delivered the twins, is the natural mother of the children.
K.M. argues, however, that the circumstances here do not present a "true `egg donation'
situation" and that because of her existing and ongoing relationship with E.G. she cannot
be characterized as a mere egg donor.

We agree that a legal distinction exists between an intending parent and a mere
"donor" of genetic material. The Legislature and the courts have already drawn that
distinction with respect to a sperm donor. The UPA specifies that the donor of semen
provided to a licensed physician for use in artificial insemination of a woman other than
the donor's wife "is treated in law as if he were not the natural father of a child thereby
conceived." (Fam. Code, § 7613, subd. (b).) The courts have held that the statute does
not apply, however, when the sperm provider intended to be a parent, not a mere donor.
(Robert B. v. Susan B., supra, 109 Cal.App.4th at p. 1113 [man whose sperm was
intended to impregnate wife was not "donor" to mistaken recipient]; Adoption of Matthew
B. (1991) 232 Cal.App.3d 1239, 1273 [man whose sperm impregnated surrogate pursuant
to agreement was not a sperm "donor"]; see also Jhordan C. v. Mary K. (1986) 179
Cal.App.3d 386, 393-394 [sperm donor statute does not apply to man whose sperm was
not provided through physician].) In Johnson, the Supreme Court similarly concluded
that the married couple were not merely donors of genetic material; they intended to
procreate a child genetically related to them. (Johnson, supra, 5 Cal.4th at p. 100.)

In the present case, the trial court found that K.M. was an ovum donor and not an
intending parent. The trial court had evidence of the relationship between K.M. and E.G.
as it existed at the time of the egg donation and the conception of the children. That
evidence showed that the parties intended to maintain their relationship into the future
and, at least implicitly, planned to raise together any child formed from K.M.'s donated
eggs. The evidence was conflicting, however, on whether the parties intended joint
parenthood or whether the parties intended to raise the child as E.G.'s child. Although

16

the trial court did not analyze the case in exactly the way we do under Johnson,9 the
court's factual findings nevertheless indicate it was only E.G. who affirmatively intended
to be the mother of a child, while K.M.'s intention was to donate ova to E.G. to facilitate
the procreation of a child for E.G.10

Again, substantial evidence supports the trial court's factual findings. E.G.
testified that her intention all along was to be the only mother. Even before her
relationship began with K.M., she had tried to conceive a child to raise as her own. E.G.
was initially reluctant to use K.M.'s eggs because she believed the relationship was too
new and she feared a future legal dispute over parentage. E.G.'s testimony that K.M.
orally agreed to E.G.'s sole parenthood was confirmed by the conduct of both parties
after the birth of the children in keeping K.M.'s genetic connection secret for years.
In
Johnson, which arose in a very different factual context, the Supreme Court
concluded that only one woman could be the child's natural mother to the exclusion of
the other: "Even though rising divorce rates have made multiple parent arrangements
common in our society, we see no compelling reason to recognize such a situation here.
The Calverts are the genetic and intending parents of their son and have provided him, by
all accounts, with a stable, intact, and nurturing home. To recognize parental rights in a
third party with whom the Calvert family has had little contact since shortly after the
child's birth would diminish Crispina's role as mother." (Johnson, supra, 5 Cal.4th at
p. 92, fn. 8.)

9 The trial court assumed that a child can have two "legal mothers" and then focused on
K.M.'s contractual relinquishment of her parental rights. As we understand Johnson,
although genetic consanguinity gives a woman a colorable claim of maternity, the
biological connection does not ripen into parentage unless the evidence establishes that
the genetic mother intended to raise the child as her own.
10 We can envision that, in many cases, the clearest indicator of the parties' intentions
on parentage will be their relationship at the time of conception and their plans, if any, to
remain together and jointly raise the children. Under the particular facts of this case, the
trial court found, based on substantial evidence, that, despite their relationship at
conception and their plans to remain a couple after E.G. gave birth, the parties did not
intend that K.M. would be a legal parent.

17

Here, the trial court's factual findings establish E.G. as the only natural mother
because only E.G. intended to procreate a child of her own. We simply do not have
before us the case that K.M. would like it to be--where both the birth mother and the
genetic mother mutually intend joint parenthood. Accordingly, we need not and do not
decide here whether the determination of natural motherhood in a dispute between the
genetic mother and the birth mother always compels the selection of one woman to the
exclusion of the other or whether a child can, in an appropriate case, have two natural
mothers.
C.

Revision of Intentions

K.M. asserts that E.G.'s conduct after the birth of the children in accepting K.M.
as a co-parent should be seen as a rescission of the parties' oral agreement to give
parental status only to E.G. The trial court found to the contrary that E.G. did not intend
by her conduct to confer legal parental status on K.M. and that the parties did not modify
their agreement that E.G. was to be the sole legal parent. We discern no error in that
ruling. We emphasize again that contract law is not controlling; our focus is on the
parties' intentions. The parties' pre-conception intention that E.G. would be the sole
legal parent until adoption impliedly contemplated that the parties would remain together
as a couple and that the children and others might regard K.M. as a second parent. E.G.'s
acceptance of K.M. as a joint parental figure in the children's lives was consistent with
the parties' initial intentions and provides no basis for a finding of repudiation of those
intentions.

In any event, we reject the notion that the intent to be a parent should be assessed
and reassessed over time. As we understand the Johnson test, the focus of inquiry must
be on the intentions at the time the child was conceived: the natural mother is the woman
who "from the outset intended to be the child's mother." (Johnson, supra, 5 Cal.4th at
p. 93; emphasis added.)11 Of course, the trial court may properly consider, as it did here,
various factors bearing upon the parties' subjective intentions at the time of the child's

11 For purposes of deciding the case before us, we construe "from the outset" to mean

18

conception, including the relationship between the birth mother and the genetic mother,
the parties' statements on parentage, their plans for raising the child, and their subsequent
conduct in carrying out those plans. But we cannot countenance extending the inquiry
beyond that initial time frame to encompass whether or how the parties' intentions were
modified through the years, perhaps as the adults' relationship waxed or waned. The law
requires a fixed standard that gives prospective parents some measure of confidence in
the legal ramifications of their procreative actions.

Had E.G. changed her mind after the children were born and agreed with K.M.
that K.M. should be a second legal parent, the couple could have proceeded to adoption.
(See fn. 4, ante.) An adoption decree would provide objective, formalized proof of the
parties' parentage intentions. Here, in the absence of an adoption decree, any post-
conception revision of the natural mother's intentions is legally irrelevant.
IV. EFFECT OF THE PARTIES' SUBSEQUENT CONDUCT
The
Johnson "intention" test calls for a determination of the woman's intent "from
the outset" to bring about the birth of the child. (Johnson, supra, 5 Cal.4th at p. 93.)
K.M. has suggested that we should alternatively consider circumstances occurring after
birth of the child, namely, the parties "social, psychological and functional parental
relationships" with the child and the best interests of the child. We cannot agree.
A.

Presumption of Parentage

K.M. relies on Family Code section 7611, subdivision (d), which creates an
evidentiary presumption of paternity for a man who receives the child into his home and
openly holds out the child as his natural child. The UPA provides that, "[i]nsofar as
practicable, the provisions of [the UPA] applicable to the father and child relationship
apply" to the mother and child relationship as well. (Fam. Code, § 7650.) Thus, for
determining maternity, it is appropriate to examine the statutory presumptions that apply

at the time of conception. Neither party claims that prior to conception there was a
change in intention. Therefore, we need not decide whether the "outset" includes a time
prior to conception.

19

to the determination of paternity. (Johnson, supra, 5 Cal.4th at p. 90; see In re Karen C.,
supra, 101 Cal.App.4th at pp. 938, 939.)

The Supreme Court in Johnson has held, however, that the statutory presumptions
do not apply when, as here, the identity of the natural mother is not an evidentiary
question: "[The presumptions of paternity in Family Code section 7611] describe
situations in which substantial evidence points to a particular man as the natural father of
the child. (9B West's U.Laws Ann. (1987) Unif. Parentage Act, com. foll. § 4, p. 299.)
In this case, there is no question as to who is claiming the mother and child relationship,
and the factual basis of each woman's claim is obvious. Thus, there is no need to resort
to an evidentiary presumption to ascertain the identity of the natural mother. Instead, we
must make the purely legal determination as between the two claimants." (Johnson,
supra, 5 Cal.4th at p. 91.) Here, as in Johnson, the factual basis of each woman's claim
is obvious. K.M. has undisputed genetic consanguinity while E.G. gestated and gave
birth to the twins. We resolve maternity under the Johnson intention test. The
presumption of parentage that arises from Family Code section 7611, subdivision (d), is
unnecessary to determine who is the natural mother.12
B.

Co-parenting

K.M. argues that she should be recognized as a legal co-parent because she played
a joint parental role with E.G. in raising the children. The argument must be rejected.
Functioning as a parent does not bestow legal status as a parent. The appellate courts
have consistently held that the domestic partner of a child's natural mother does not
qualify as a parent under the UPA despite the parental role the partner played in the life
of the child. (West v. Superior Court, supra, 59 Cal.App.4th 302; Nancy S., supra, 228
Cal.App.3d 831; Curiale v. Reagan, supra, 222 Cal.App.3d 1597.

12 In any event, the concept of receiving a child into one's home as one's own child
must be distinguished from cohabiting with the child's mother and welcoming the
mother's child. (Miller v. Miller (1998) 64 Cal.App.4th 111, 118.) The trial court found
from the conflicting evidence that K.M. received the twins as E.G.'s children, agreeing
not to disclose her own genetic connection to the children or to attain legal parental status
until adoption. The presumption does not arise from these facts.

20

In
Nancy S., two women in a long-term lesbian relationship jointly decided to have
children by artificial insemination. Nancy then gave birth to two children four years
apart. Both women assumed the responsibilities of a parent, and the children referred to
both women as "Mom." After the couple's relationship ended, the two shared custody
and visitation for three years, but eventually a dispute arose over the custody
arrangements. Nancy then obtained a judicial declaration that she was solely entitled to
custody and that her former domestic partner, Michele, was entitled to visitation only
with Nancy's consent. This court affirmed the trial court's determination that because
Michele was neither a natural nor an adoptive parent she did not qualify as a parent.
(Nancy S., supra, 228 Cal.App.3d at p. 836.)
The
Nancy S. court recognized that Michele's role as a loving mother to the
children would entitle her to the status of a "de facto parent" so as to allow her to
intervene in a guardianship or dependency proceeding. (Nancy S., supra, 228 Cal.App.3d
at pp. 836-837; see also In re Guardianship of Olivia J. (2000) 84 Cal.App.4th 1146,
1158-1159.) But the court held that Michele's status as a de facto parent did not make
her a natural parent under the UPA and consequently did not entitle her to custody or
visitation without the consent of the natural parent. (Nancy S., at pp. 837-838.)

In the present case, the trial court rejected K.M.'s claim of an agreement for joint
parenthood and found that from the outset only E.G. was the intending parent. We must
conclude in accordance with Nancy S. that K.M. could not acquire the status of a natural
parent by thereafter functioning in a parental role.13 The method available to K.M. for
acquiring parental rights was adoption. Without an adoption decree formalizing her
parental rights, K.M. is not legally recognized as the children's parent.

13
We do not mean to imply that the conduct of the parties after the birth of a child
and the parental roles the parties played have no legal significance. Such evidence would
be relevant to confirm or refute proof of the parties' parentage intentions at conception
under the Johnson test.

21

C.

Estoppel to Deny Rights of Children

K.M. argues that E.G. should be estopped by her conduct from denying K.M.'s
parentage. The trial court rejected the argument below, finding that K.M. was not misled
by E.G.: "she knew that [E.G.] did not intend [by her conduct] to confer parental rights
upon [K.M.]; and she understood that [E.G.] would confer such rights only via formal
adoption proceedings." K.M. now contends that the estoppel must be analyzed from the
point of view of the children and that E.G. should be estopped because E.G. misled the
children into believing that K.M., too, was their mother.

The application of estoppel in these circumstances has been rejected. In Nancy S.,
supra, 228 Cal.App.3d 831, the birth mother's lesbian partner argued that the doctrine of
equitable estoppel should be applied because the mother had encouraged and supported a
parent-child relationship for many years. The appellate court held that estoppel could not
be invoked against the natural mother to establish parentage in a nonparent. (Id. at pp.
839-840.)14 In Nancy S., moreover, the court rejected the formulation advanced by the
domestic partner that a nonparent may acquire parental status when the legal parent
created the relationship between the nonparent and child with the intent that the
relationship be parental in nature. (Id. at pp. 840-841.) The Nancy S. court explained as
follows: "Although the facts in this case are relatively straightforward regarding the
intent of the natural mother to create a parental relationship between appellant and her
children, expanding the definition of a `parent' in the manner advocated by appellant
would expose other natural parents to litigation brought by child-care providers of long
standing, relatives, successive sets of stepparents or other close friends of the family. No
matter how narrowly we might attempt to draft the definition, the fact remains that the

14 Likewise, in applying the doctrine of equitable adoption in a case of intestate
succession, the Supreme Court rejected the application of estoppel based merely on the
existence of a familial relationship between the decedent and the claimant. "The
existence of a mutually affectionate relationship, without any direct expression by the
decedent of an intent to adopt the child or to have him or her treated as a legally adopted
child, sheds little light on the decedent's likely intent regarding distribution of property."
(Estate of Ford, supra, 32 Cal.4th at p. 170.)

22

status of individuals claiming to be parents would have to be litigated and resolution of
these claims would turn on elusive factual determinations of the intent of the natural
mother, the perceptions of the children, and the course of conduct of the party claiming
parental status. By deferring to the Legislature in matters involving complex social and
policy ramifications far beyond the facts of the particular case, we are not telling the
parties that the issues they raise are unworthy of legal recognition. To the contrary, we
intend only to illustrate the limitations of the courts in fashioning a comprehensive
solution to such a complex and socially significant issue." (Nancy S., at p. 841.)
Because there is substantial evidence supporting the trial court's finding that K.M.
intended any child born of E.G. to be E.G.'s own child, K.M. does not qualify as a natural
mother under the Johnson test. Pursuant to Nancy S., K.M. cannot subsequently acquire
parental status by equitable estoppel based upon E.G.'s conduct or the perceptions of the
children.
D.

Best Interests of the Children

We join the trial court in recognizing the harsh consequences of this decision for
the children in this case, who will suffer significantly from the inability of the parties to
agree on sharing their parental roles. As the trial court found, the interests of the children
will be "disserved" by the loss of a loving mother figure. K.M. invites us to decide this
case based on the children's best interests and reverse. This we may not do. In Johnson,
the Supreme Court expressly rejected the assertion that parentage can be based on the
best interests of the child: "Such an approach raises the repugnant specter of
governmental interference in matters implicating our most fundamental notions of
privacy, and confuses concepts of parentage and custody. Logically, the determination of
parentage must precede, and should not be dictated by, eventual custody decisions."
(Johnson, supra, 5 Cal.4th at p. 93, fn. 10.) Basing parentage on a best interests standard
would put at risk the rights of any natural parent who entered into a relationship and
encouraged the formation of parental bonds between the children and the new partner.
(Cf. Nancy S., supra, 228 Cal.App.3d at pp. 840-841.) Moreover, the best interests
standard would foster litigation and promote instability in the children's lives. (Johnson,

23

at pp. 93-94, fn. 10.) Thus, the best interests standard is limited to issues of custody and
visitation and we may not apply it to decide the parentage question at issue here.15
DISPOSITION

The judgment is affirmed.

_________________________

Simons, J.

We concur:

________________________
Jones, P.J.

________________________
Gemello, J.

15 K.M. argues that the dismissal of her petition deprived her of her constitutional rights
as a parent and likewise deprived the children of their constitutional rights to preservation
of the parent-child relationship. These arguments presuppose that K.M. is the natural
parent. (See Johnson, supra, 5 Cal.4th at pp. 98-100.) Because she is not a parent, the
arguments fail. Amicus curiae, the National Association of Counsel for Children, argues
that independent counsel should have been appointed to represent the interests of the
children. Under the UPA, the trial court has discretion to appoint counsel for the children
when custody or visitation is in issue. (Fam. Code, § 7635, subd. (d).) The trial court
could reasonably have concluded that the interests of the children in preserving their
relationship with K.M. were adequately advanced through the advocacy of K.M. and her
counsel. Once the trial court determined that K.M. was not a legal parent, custody and
visitation were no longer in issue.

24

Trial court:

Marin County Superior Court
Trial
judge:
Hon.
Randolph
E.
Heubach

Counsel for Plaintiff and Appellant:
Hersh Family Law Practice,
Jill
Hersh,
Stephanie
Wald

Counsel for Defendant and Respondent: Sideman & Bancroft LLP,

Diana E. Richmond

Shannon Minter and Courtney Joslin for National Center for Lesbian Rights on behalf of
Plaintiff and Appellant

Marvin R. Ventrell for National Association of Counsel for Children and Donna
Wickham Furth for Northern California Association of Counsel for Children as Amici
Curiae on behalf of the minors

25