Putting Your Eggs in Someone Else's Basket:Inserting Uniformity into the UniformParentage Act's Treatment ofAssisted Reproduction

I. IntroductionIn August 2005, the California Supreme Court issued a landmark decision in the area of family law.1 In KM. v. E.G.,2 the court ruled that "both members of a lesbian couple who plan for and raise a child born to either of them should be considered the child's mothers even after their relationship ends."3 The court's ruling generated a healthy amount of media attention across the country.4Although K.M. v. E.G. produced the most attention, contrasting it with Steven S. v. Deborah D.,5 a less well known California case, highlights the major conflict in this Note-that is, that statutes regarding gamete donation discriminate against donors based solely on their gender. Both the California cases involved gamete donors-those who have donated sperm or eggs to assist someone else in assisted reproduction-who had relationships with the gestating mothers of the children resulting from their respective donations.6 The two cases yielded disparate results, largely because Steven was statutorily prohibited from claiming parental rights based on his gender;7 however, K.M.'s status as a donor is not addressed by statute, resulting in the creation of a new rule that favors K.M. based on her gender.8Even though both cases discussed in this Note occurred in California, the problem of disparate treatment for gamete donors based on their gender is one of national importance that is likely to occur in the future. A recent case in the Washington Supreme Court,9 the California cases10 decided on the same day as KM. v. E.G., and several other cases from around the nation, decided between 1999 and 2005," highlight the increasing trend of these types of suits. Cases dealing with artificial insemination are hardly new phenomena in American case-law,12 but assisted reproduction involving same-sex couples is a new and relatively unsettled area of law.13Despite the fact that courts have often been called on to resolve these novel cases, courts are a less suitable forum for advancing the law on this new, yet growing, trend in family law because of the likelihood of inconsistent rulings from state to state.14 Instead, legislatures should seek a uniform and nationally adopted rule15 that serves to protect families, as well as the best interest of the child, by allowing those who have bonded with children to continue to raise, support, and love them.As the law currently stands, the interests of same-sex couples are not addressed in statutes dealing with artificial insemination and assisted reproduction.16 The Uniform Parentage Act (UPA) and the statutes of most states17 approach the idea of assisted reproduction based on gender, in that they assume that only a male donor would have an interest in claiming parental rights in a child.18 The language of the revised UPA § 703 assumes that only a man would provide sperm with the intention of becoming a parent ofthat child, but fails to mention a woman who might donate an egg with the same intention.19Instead of ensuring gender equality, many current statutes focus on the rights of unmarried women to procreate using artificial insemination, which is arguably an acceptable, and even desirable, societal objective.20 Assuming that society does find that allowing a single woman to take advantage of assisted reproductive procedures is a valid goal, surely that goal does not preclude another valid goal-that of allowing same-sex couples also to enjoy the benefits of assisted reproductive technologies.21 In furtherance of that goal, therefore, state legislatures should not focus on the gender of the donor but rather purely on the intentions of the donor, male or female, and those of the woman who is the recipient of the donation and the birth mother of the child.This Note examines the problem of treating the genders differently in gamete donation cases, while also effecting a new rule courts should follow in determining parentage in egg and sperm donation cases. …