NCLR Files Opening Brief in Lesbian Child Support Case

(San Francisco, CA November 15, 2004) — The National Center for Lesbian Rights (NCLR) filed a brief with the California Supreme Court in a lesbian child support case Elisa B. v. Superior Court. This case is one of three cases involving children born to lesbian parents currently pending before the California Supreme Court. All three cases pose the question of whether both partners in a same-sex couple who use artificial insemination to have children together are legal parents, as they would be if the partners were married.

In this case, a lesbian couple — Elisa and Emily — decided to have children together through artificial insemination. Elisa gave birth to the couple’s first child in 1997, and shortly thereafter, Emily gave birth to twins. The same sperm donor was used for all three children. One of the twins Ry was born with Downs Syndrome and requires twenty-four hour medical care. After the children were born, Elisa and Emily raised them together. Elisa supported the family financially, and Emily stayed home to care for children. The couple separated when the twins were about two years old. Elisa visited with the twins and continued to provide some financial support for a period of time; eventually, however, she cut off all contact with Emily and the twins and stopped paying any support. Because of Ry’s medical needs, Emily was forced to apply for assistance from El Dorado County, which then filed an action against Elisa seeking child support.

In 2002, the trial court found that Elisa is a legal parent, based on her decision to bring the children into the world and her subsequent conduct in acting as a parent to them for the first few years of their lives. The trial court explained: “[Elisa] should be financially responsible for the needs of the child [that] she took such extreme efforts to create. . . . She is a parent as defined by case law because she created these children and in fact parented them for several years.” These children “should be her responsibility and not the responsibility of the taxpayer.”

This decision was reversed by the Court of Appeal for the Third Appellate District. The Court of Appeal based its decision on the fact that Elisa and Emily were in a same-sex relationship, holding that a child cannot have two legal parents of the same gender except through adoption.

NCLR represents the biological mother of the twins Emily B. In its brief, NCLR argues that the rules that apply to other children must be applied equally to children born to same-sex couples. The Attorney General is also arguing that Elisa should be held to be the legal parent of the twins.

“As the California Supreme Court held over thirty five years ago, a person who consents to a medical procedure with the intention of bringing a child into the world that they will treat as their own child cannot be allowed to disclaim their responsibilities for that child,” said Courtney Joslin, Senior Staff Attorney for NCLR. “These children deserve the same rights and protections as all other children, regardless of the gender or sexual orientation of their parents.”

The other two cases being considered by the California Supreme Court are Kristine H. v. Lisa R. and K.M. v. E.G. NCLR filed amicus briefs in both cases at the Court of Appeal level, and will be filing amicus briefs with the California Supreme Court.

Oral argument in the three cases is expected to occur in the spring of 2005.

[click here to read NCLR’s brief (pdf)

[click here to read Attorney General’s opening brief (pdf)

The National Center for Lesbian Rights is a national legal organization committed to advancing the civil and human rights of lesbian, gay, bisexual, and transgender people and their families through litigation, public policy advocacy, and public education.