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Filed 6/9/04

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

K.M.,
A101754

Plaintiff and Appellant,
(Marin
County

Super. Ct. No. CV 020777)

v.

ORDER MODIFYING OPINION
E.G.,
AND
DENYING
REHEARING
Defendant
and
Respondent.
[NO CHANGE IN JUDGMENT]

THE
COURT:

It is ordered that the opinion filed herein on May 10, 2004, be modified as follows:

1.
On page 1, second sentence of the first full paragraph, the phrase "that only
E.G. would be the legal parent" is changed to "that E.G. would be the only parent" so that
the sentence reads:
The couple orally agreed that E.G. would be the only parent
unless and until there was a formal adoption.

2.
On page 2, fourth sentence from the end of the third full paragraph, the
phrase "only legal mother" is changed to "only mother" so that the sentence reads:
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 mother.

3.
On page 2, last sentence of the third full paragraph, the phrase "and made
no request to be a legal parent" is deleted so that the sentence reads:
K.M. agreed to E.G.'s terms.

4.
On page 4, last sentence of the third full paragraph, the phrase "never
changed" is changed to "did not change" so that the sentence reads:

1

K.M. had a life insurance policy and small retirement plan,
but she did not change the beneficiaries to name the children.

5.
On page 4, at the end of footnote 1, following the words "her medical
history," add the following sentence:
Not until January 2001 did K.M. add the children as
beneficiaries to a life insurance policy obtained through her
employer.

6.
On page 5, second sentence of the first full paragraph, the phrase "only
legal mother" is changed to "only mother" so that the sentence reads:
E.G. asserted she would never tell them and insisted she was
their only mother.

7.
On page 6, third sentence of the second full paragraph, the phrase "a legal
parent" is changed to "a parent" so that the sentence reads:
K.M. also testified, on the one hand, that the parties discussed
the need for adoption to make K.M. a parent, and, on the
other hand, that she believed adoption was unnecessary
because of her genetic connection to the children.

8.
On page 7, third sentence of the first full paragraph, the phrase "sole legal
parent" is changed to "sole parent" so that the sentence reads:
Further, the court found that the parties agreed E.G. would be
the sole parent and their agreement was not modified by their
conduct.

9.
On the bottom of page 8, first sentence of the paragraph beginning "On the
merits," the phrase "only legal parent" is changed to "only legally recognized parent
under the UPA" so that the sentence reads:
On the merits, however, as we explain, the trial court properly
concluded after a full evidentiary hearing that E.G. was the
only legally recognized parent under the UPA.

10.
On page 11, second sentence of the first full paragraph, the phrase "sole
legal parent" is changed to "sole parent" so that the sentence reads:
First, K.M. orally agreed before the children were conceived
that E.G. would be the sole parent unless and until the parties
underwent formal adoption proceedings.

11.
On page 12, first sentence of the first full paragraph, the phrase "natural
motherhood" is changed to "parenthood" so that the sentence reads:
The ultimate determination of parenthood depends not upon
the existence of a binding contract but rather, as Johnson

2

instructs, upon the woman's intention to bring about the birth
of the child to raise as her own.

12.
On the bottom of page 12, second sentence of the second paragraph
beginning "In Johnson," the phrase "only legal parent" is changed to "only parent" so
that the sentence reads:
In the present case, the trial court found in the parties' oral
expressions an intention that E.G. would be the only parent
unless and until an adoption by K.M.

13.
On page 13, last sentence of the paragraph commencing on page 12 and
beginning "In Johnson," the phrase "her own" is changed to add italics so that the
sentence reads:
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 child.

14.
On the bottom of page 13, sixth sentence of the paragraph beginning "The
record contains," the phrase "K.M. never listed" is changed to "until 2001 K.M. did not
list" so that the sentence reads:
The evidence was undisputed that until 1999 neither party
disclosed to others K.M.'s genetic connection to the children
and until 2001 K.M. did not list the children as beneficiaries
of her life insurance policy or retirement plan.

15.
On page 14, final sentence in the paragraph commencing on page 13 and
beginning "The record contains," the phrase "only legal parent" is changed to "only
parent" so that the sentence reads as follows:
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
parent.

16.
On page 14, last sentence of the first full paragraph, the phrase "sole legal
parent" is changed to "sole parent" so that the sentence reads:
The donor consent form confirms that E.G. was intended to
be the natural mother and sole parent, while K.M. was the
ovum donor.

17.
On page 14, last sentence of the second full paragraph, the phrase "the legal
mother" is changed to "the mother" so that the sentence reads:
The form simply reflects K.M.'s intention that she would not
be the mother of any child formed from eggs donated to E.G.

3

18.
On page 15, first sentence of the first full paragraph, the phrase "who
intended to be the sole legal parent" is changed to "with the intent that the recipient be
the sole parent" so that the sentence reads:
There is no reason K.M. should be found incapable of making
the informed choice to donate her eggs to another woman
with the intent that the recipient be the sole parent.

19.
On the bottom of page 16, third sentence of the paragraph commencing
with "In the present case," the phrase "raise together any child formed from K.M.'s
donated eggs" is changed to "provide a home together for E.G.'s child as long as their
relationship continued" so that the sentence reads:
That evidence showed that the parties intended to maintain
their relationship into the future and, at least implicitly,
planned to provide a home together for E.G.'s child as long as
their relationship continued.

20.
On the bottom of page 16, fourth sentence of the paragraph commencing
with "In the present case," is deleted and replaced with the following sentence:
The evidence was conflicting on whether the parties intended
joint parenthood of a child formed from K.M.'s donated eggs
or whether the parties intended to raise the child as E.G.'s
own child.

21.
On page 17, last sentence of footnote 10, the phrase "a legal parent" is
changed to "a parent" so that the sentence reads:
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
parent.

22.
On page 17, at the end of the first full paragraph, following the words
"secret for years," add the following sentence:
Moreover, after the children grew older, K.M.'s assertions
that she wanted to adopt them constituted an implied
concession that until adoption E.G. was the only parent.

23.
On page 18, second sentence of the second full paragraph, the phrase "sole
legal parent" is changed to "sole parent" so that the sentence read:
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 parent.

4

24.
On page 18, fifth sentence of the second full paragraph, the phrase "sole
legal parent" is changed to "sole parent" so that the sentence reads:
The parties' pre-conception intention that E.G. would be the
sole 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.

25.
On page 19, first sentence of the first full paragraph, the phrase "second
legal parent" is changed to "second parent" so that the sentence reads:
Had E.G. changed her mind after the children were born and
agreed with K.M. that K.M. should be a second parent, the
couple could have proceeded to adoption.

26.
On page 20, the first full paragraph beginning "The Supreme Court,"
including footnote 12, is deleted and replaced with the following two paragraphs and new
footnote 12:

K.M., however, does not qualify for the presumption
under Family Code section 7611, subdivision (d). 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 parental status until
adoption. The presumption does not arise from these facts.

In any event, the presumption under Family Code
section 7611, subdivision (d), is superfluous here. As we
understand the Supreme Court's explanation in Johnson, both
the genetic mother and the surrogate birth mother in that case
were qualified to be the natural mother. There was no need to
apply an evidentiary presumption to determine which woman
had a prima facie claim of maternity.12 So, too, in the present
case, both K.M. and E.G. qualify to be the natural mother:
K.M. has undisputed genetic consanguinity while E.G.
gestated and gave birth to the twins. K.M. need not rely upon
the presumption from Family Code section 7611, subdivision
(d), to advance her claim as the natural mother. Rather, as
Johnson further instructs, when two women have acceptable
proof of maternity, the ultimate determination of legal
parentage is made by examining the parties' intentions. As
between the genetic mother and the birth mother, the law

5

recognizes the woman who intended to bring about the birth
of the child to raise as her own. (Johnson, supra, 5 Cal.4th at
p. 93.)
_____________
12 The Johnson court explained as follows: 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. [Citation.]
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.)

27.
On the bottom of page 20, first sentence of paragraph beginning "K.M.
argues," the phrase "as a legal co-parent" is changed to "as a co-parent" so that the
sentence reads as follows:
K.M. argues that she should be recognized as a co-parent
because she played a joint parental role with E.G. in raising
the children.

28.
On page 23, first sentence of the first full paragraph, the phrase "as a
natural mother" is changed to "as a parent" so that the sentence reads:
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 parent under
the Johnson test.

29.
On page 24, second sentence of footnote 15, the phrase "the natural parent"
is changed to "a parent" so that the sentence reads:
These arguments presuppose that K.M. is a parent.

There is no change in the judgment.

The petition for rehearing is denied.

JONES, P.J.

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