Sunday, June 22, 2003 (San Francisco Chronicle Magazine)
Who's the Real Mom?/The law lags in custody battles between lesbians
Patricia R. Olsen

All Lisa Tortoriello (not her real name) wants is to be a mother to the 7-year-old twins she created with her partner. But like many lesbians whose relationships have ended, Lisa, a Bay Area resident, finds herself in legal never-never land. Her complicated case, which is winding its way through the California courts, has at its heart the "best interests of the children." The ultimate outcome may have far-ranging repercussions for all lesbian couples considering parenthood.

Lisa's heart was broken twice. Her partner moved out of state two years ago - supposedly to care for an ailing parent for a short time, Lisa says - and she took the twins with her. Once there, however, she ended the relationship, apparently wanting the girls all to herself. (Lisa's partner declined to be interviewed for this story.) Now Lisa sees the girls only once every six or eight weeks by means of an informal agreement that the women's lawyers have reached. It is not lost on Lisa that in a divorce, a parent who shares custody cannot easily leave the state with the children. But that is part of the problem - because the two women were not married when the twins were born, Lisa must fight to be recognized as a legal parent, even though one bioethicist says Lisa is as genetically linked to the little girls as the birth mother is.

In California, a legal mother can be a woman biologically linked to the child by either genetics or gestation, so it might appear that Lisa has no problem. However, Lisa's partner, Judy, (also not her real name) started with the advantage in court as the woman who gave birth and the one listed as the mother on the birth certificates. Before Lisa can argue in court for anything relating to the girls, like custody, she has to be granted "legal parent" status.

Dr. Arthur Caplan, chairman of the Department of Medical Ethics at the University of Pennsylvania, points out how science and the law can differ. In Anglo-American law, he notes, the woman who gives birth is traditionally recognized as the child's mother. But biologically, the woman who supplies the genome - the genetic material - is the mother, he said. By extension, he adds, if two women donate genetic material, then either or both can be the biological mother.

Lisa's lawyer, Jill Hersh, of Hersh Family Law in San Francisco, says that this case differs markedly from those involving lesbians who adopted children and later split up, or cases where only one partner either provided the eggs or gave birth. According to Lisa and her lawyer, there are two legal mothers in this case, and it is time the law reflected such societal changes. To complicate matters further, the highly charged issue of two mothers is not the only legal issue in this case.

As head of a local nonprofit organization, Lisa, 41, ably manages a $4.8 million budget. She moves easily between take-charge mode and gentle persuasion, depending on what fits the fund-raising need. But ask her how the court case, already in its second year, has been and she crumbles. It takes a minute before she can talk at all. "Some days it's hard to even move, but I know it's just for a short time and the next day I'll be better. I have two little girls that I'll fight for for the rest of my life," she says.

In 1993, after a brief earlier relationship, Lisa and Judy became serious. They moved in together in 1994 and shortly thereafter decided they wanted to have children together. Lisa was facing imminent uterine surgery for fibroid tumors that she knew could result in the loss of her reproductive ability, and Judy was diagnosed with eggs that were incompetent to achieve a pregnancy. Their gynecologists were in the same medical practice, and one of them suggested what seemed like the perfect solution: Lisa would provide the eggs, which would be fertilized with sperm from an anonymous donor, and Judy would carry the embryos.In April 1995, multiple fertilized ovum were implanted in Judy's uterus, and in December she gave birth to healthy twin girls, each about 4 1/2
pounds.

Lisa, who before being interviewed for this article had just packed the girls' remaining personal things in preparation for selling the house they shared, breaks down again when talking about the girls' birth. "We were ecstatic," she said, "like any two people who finally have the children they've worked so hard to have."

She recalls her role in the girls' lives: She was in the operating room when they were born, and she was the one who carried them to the hospital nursery. After the two women brought the twins home, she was the one who rocked them to sleep, got up with them in the middle of the night, gave them their bath, read to them. "I took them with me everywhere," Lisa said.

But while the girls thrived, Judy and Lisa's relationship did not. During one argument, Judy threatened Lisa with a hidden weapon - the ovum donor consent form Lisa had signed at the fertility clinic where the in vitro fertilization (IVF) was performed. Lisa hadn't thought anything of it when the receptionist handed her a clipboard with the clinic's standard forms to be signed; this was simply a step to be completed preparing for IVF. But along with asking for the patient's informed consent and medical history was language advising egg donors that by affixing their signature, they were giving up rights as a parent to any children that were born as a result of using their eggs. When Judy brought this up during the argument, Lisa recalls, she talked as if it gave her carte blanche to make all decisions about the girls. That form, which Lisa barely remembered, would come back to haunt her.

In the summer of 2001, after Judy left, Lisa called the girls every day and flew to see them every month for 10 days. She thought she and her partner might work things out. They tried counseling, but their relationship only deteriorated further, and they both sought legal help
over contact with the girls, among other things.

Lisa decided she'd had enough. No way was she going to take being separated from the twins like this sitting down. In October 2001, the distraught executive hired Hersh to help her fight to maintain her relationship with her daughters. Hersh filed suit before Judy reached the six-month residency requirement in her new state, so that the case could be tried on Lisa's turf instead of Judy's. A year later they went to court.

With its sky-blue arched roof and sand-colored exterior, the Bay Area courthouse nestles peacefully against its surroundings. But for four days in October 2002, the atmosphere in the courtroom was anything but peaceful for Hersh's client. "I remember getting dressed for the trial," Lisa said. "My sister had stayed with me the night before, and I walked downstairs and said, "I don't think I'm going to make it.' I hadn't eaten much of anything in two or three weeks except for Reese's peanut butter cups and water."

"To have your entire life put out there and have one person determine your fate and your children's fate - it's indescribable," Lisa said. "There is nothing like that experience. You pray that the judge will do what's right." She credits Hersh for keeping her spirits up, for "saying and doing exactly the right thing."

Hersh hoped to establish a legal precedent. "The law has not kept pace with our changing definition of what makes a family, so that nontraditional families do not enjoy the same legal rights and protection as traditional families. When traditional parents divorce, their children are assured that both parents can argue in court for parental rights. Children of nontraditional families do not receive equal protection - as do children of traditional relationships - of their same right to an enduring, established, social, psychological and stable parent-child relationship.

The lawyer argued that Lisa is just as much a parent to the girls as the birth mother, and by only recognizing Judy as a legal parent, current law is penalizing Lisa for her nontraditional relationship. California law recognizes nonbiological fathers as legal fathers under section 7611(d) of the Family Code, and recent case law has declared that this statue is equally applicable to women. The legal framework is there to declare her a legal parent, the attorney says, and she believes that this case is even more compelling than those that have come before. "It's time the law was updated to recognize Lisa's rights and the children's rights to their parent-child relationship with her," Hersh said.

In addition, Hersh argued about the legality of the ovum donor form that Lisa signed. In legal terms, the form that she signed is an "adhesion" contract, a prerequisite for receiving medical treatment. Because she and her partner agreed that each would contribute genetic material to create a child, Lisa was no ordinary egg donor, Hersh argued. By having to sign a form really meant for anonymous egg donors or strangers in order to obtain treatment, her client was placed in an unequal bargaining position.

And finally, the lawyer focused on how current law affects the children. For more than five years, Lisa and the girls lived as part of a family, and that bond shouldn't be cast asunder because of outdated law, she said. The twins have a right to have a continuing relationship with Lisa, and for this to happen fairly, Lisa must be able to argue as a parent in court. Hersh continued to argue that there are two legal mothers, not one.

Hersh, 50, cares deeply about this case. She has represented both traditional and nontraditional families in her 25-year career in family law (primarily matrimonial law) and has seen her share of complex cases. The litigator, who is married with three children, has a special interest in working to see that family law reflects changes in society at large. In particular, she hopes to advance the civil rights of same-gender couples and their children.

She also has sat as judge pro tempore in the San Francisco court system during judges' vacations, and briefly served as technical adviser to the television show "Judging Amy." Hersh also has been an adjunct professor of community property law at Hastings College of the Law, and an instructional speaker in areas of family law to lawyers, accountants and mental health professionals.

In December 2002, Lisa and her attorney spent another day in court and then waited for the judge's decision. When it came, it wasn't the one they were hoping for. The judge did not grant Lisa legal parent status, based on the fact that Judy was the birth mother, and that Lisa had signed the form giving up parental rights when she donated her eggs. Although Lisa was devastated, Hersh was not surprised, having expected the matter to be decided by a higher court. She immediately began preparing an appeal. The attorney will take the case to the state Supreme Court, if need be, she said.

Lisa, too, is gearing up to continue the fight. Talking about the girls seems to give her comfort. She describes how the two women's extended family and wide circle of friends had been involved in the girls' lives. "One of the girls is the spitting image of me," she says. "Everyone says so. People ask me,

"How did you manage it so that she looks only like you?' " she adds, with a laugh. "The other one, whose hair is curly, looks like my brother. One has the quieter, gentler side of me and the other has my adventurous side." Then Lisa is quiet again. "You learn that the law is such a blunt instrument," she finishes.

The Pennsylvania bioethicist is on Lisa's side all the way. "I can short-circuit this [argument] by saying biology doesn't matter at this stage," Dr. Caplan said. "After seven years of raising children together, they're both a social parent; both women have rights." Who delivered the baby and who contributed the eggs, he reasoned, is far less relevant than the bond
that has formed between the parents and the babies over the years.

Caplan continued: "I would argue the same way I would in an adoption." The judge should handle this as what's in the best interests of the children. If one parent isn't able to raise the children, or is a danger to them, that's one thing; otherwise I would split the custody, as with married heterosexuals. I would tell a parent wanting to leave the area that she couldn't, that they have to share and not make the twins' lives miserable. I know people want to jump to birth mother versus eggs, but at 7, that's really of little interest."

When asked how he would respond to naysayers, Caplan repeated Hersh's argument: "The dominant ethical principle here is the best interests of the children. If I'm the judge, it doesn't mean anything to me who's married, if a woman is gay, if gay women have parental rights. Have they bonded, have both women been there and raised the children, was one negligent, was one not around much - [those] are the morally relevant facts."

He said these tenets are age-old. They've worked fairly well, and the courts should continue to follow them. "Again," the bioethicist stressed, "the principle to be followed is not biology. Whether it's the eggs or the uterus, which one counts more matters less and less the older the children get. At age 7, when the kids have relationships with both women, the rest of the discussion has to be put aside." And, the bioethicist tells us, "keep in mind that the technology is coming to permit uterus or ovary transplants. This will put the notion of birth mother on even weaker footing biologically."

The case has legal implications not only for California law, but for the entire country. For instance, in deciding similar cases, courts refer to cases from other states for guidance. Also, Hersh says, advances in the law in one jurisdiction create a momentum for change elsewhere and can galvanize progress in other courts. It is easier to bring down the barriers to civil rights from state to state if courts in other jurisdictions have removed the obstacles.

For now the lawyers for both sides are continuing with the informal visitation agreement. When Judy first left, Lisa called the girls twice a day from California. Then, Lisa says, Judy began limiting Lisa's phone calls to three times a week, then twice a week, and finally to once a week. At present, Lisa is allowed to call them on Wednesdays at 3:30 p.m., but the phone just rings and rings, she said.

Initially, she could visit one weekend a month. She hates seeing them only one weekend every six or eight weeks. When she visits, she tries to take them away for a "fun" weekend when they don't have to attend a sports activity or another function. Once they traveled to Rockport, Mass., and for the girls' birthday they saw "Beauty and the Beast" on Broadway in New York City. One twin likes Chinese food and the other likes Mexican, Lisa said, so they're always "scoping out restaurants." Lisa looks for hotels with indoor pools because the girls like to swim, and, she was quick to add, both of them like room service.

"The judge told me that in loving my ex-partner, I was overly optimistic about the relationship lasting forever," she said, and you can't help but notice the sadness in her voice. She's not sure how she feels about the future other than that she can't allow herself to lose hope. Sometimes Lisa wonders about her endurance. "I don't want to feel like this anymore," she said. "But I have no choice because I have to fight for my children, and as a parent, I have to show the girls that they have to be able to fight for what is right and what they dream of." Ever protective of the girls' privacy, she will not reveal what the girls say about the separation.

Finally, she is reflective. "I was very good to her," she says, speaking of her ex-partner. "I'm a good partner, and at some point I hope I'll have someone special in my life again. But right now my trust level is É" She lets her thought trail off.

"Lisa is one of the kindest, nicest people I've ever met," Hersh says of her client. "She doesn't deserve this." The attorney is optimistic about the outcome of the appeal. "The legal environment in California is primed to take this next step forward in developing law in this area," she says. What she doesn't say, but what is at the forefront of her mind, is that two beautiful, brunette 7-year-olds - and one California woman - are anxiously awaiting the final decision.