THE OTHER MOTHER: From the New York Times Magazine
 
...Something in the eyes of one twin, in the curve of her smile, resembles K. The dark curls on the other are identical to K.'s brother's. And no wonder: K. provided the eggs for their conception. Those eggs were fertilized with anonymous donor sperm in vitro and implanted into her partner's uterus. On that much the two women agree. They also agree that they were in love at the time and for nearly six years were immersed together in the sweet banality of child-rearing.

They even agree that on the day K. began injections to stimulate her ovaries at a San Francisco infertility clinic, she signed a consent form, which, among other things, waived her parental rights. Where they differ is over the meaning of that document, whether it trumps both genetics and K.'s personal relationship with the girls. E. says that her daughters have just one mother. K. insists that they have two; she has gone to court to prove it.

When I met K., a county judge had ruled against her petition to be recognized as a parent, and she was waiting for a decision from the state court of appeals. She hadn't seen the twins, who were living in Massachusetts, in a month, and then only for eight hours. For her, the issue was simple: she wanted her daughters back. But in this age of conceptions that can be simultaneously multipartied and immaculate -- using egg donors, sperm donors, embryo donors, surrogates, even posthumous sperm -- defining parenthood has become dizzyingly complex. For gay parents, who don't have the same legal protections as heterosexuals, the issue is even more complicated. Cases like K.'s will decide their future, determining what rights, if any, they and their children will have. ...

Every month they went through a cycle of hope and despair. By December 1994, they were exhausted. E. began a round of in vitro fertilization, but she didn't produce any viable eggs. Meanwhile, K.'s fibroids had become excruciating; she needed to have her uterus removed. Her ova were fine, but it was unlikely that she would ever bear a child; E.'s eggs were failing, but her womb was healthy. The director of the clinic sat them down. ''Have you ever considered taking K.'s eggs and using E.'s uterus?'' she asked. Egg donation was still rare; neither woman had considered it. ''Suddenly we thought, Oh, my gosh, this could really happen!'' K. says. ''It was like a miracle. It was like two miracles.''

E. says that she was nervous about using K.'s eggs -- she agreed to do it only if she would clearly be the sole legal mother. The couple's relationship was still new, and she didn't want to end up in a custody battle. If their love held, she told K., she would consider a second-parent adoption in five years. E. says that K. agreed to that. K. denies that she accepted those terms. ''Our only agreement,'' she says, ''was that we were domestic partners, we were going to have children together and we were a great team.'' K. says she believed that her partner's only hesitation was that their child might resemble K., forcing E. to confront her mother with her sexuality. E.'s mother knew that her daughter was gay, but she didn't acknowledge it, and E. didn't press the issue.

K. started injections of Perganol in the spring of 1995. Before the first shot, however, a clinic employee gave her a four-page consent form on a clipboard. E. says that they had gone over it weeks before. K. says that it was the first time she had seen it and that she was given only a few minutes to scan it. The form explained the drugs she would be given and the egg-retrieval surgery. It listed the ways the cycle might go wrong and the risks to her at every stage. All things she already knew. It also, in three places, waived her rights to the eggs or to any children resulting from them.

K. says it seemed obvious that the form was meant for anonymous donors, not for a live-in lover. (The clinic later stopped requiring lesbian couples to sign it.) One section included the phrase ''I agree not to attempt to discover the identity of the recipient.'' Could K. have challenged the language? Could she have crossed sections out? If so, it didn't occur to her at the time. ''I believed I had to sign the form to do the procedure,'' she says now. ''It was something for the clinic -- it wasn't anything between my partner and me. We were having a family. I look back on that now, and I think, Oh, my God.''

The idea that parenthood is a cultural creation conferred not by biology but by choice isn't new. It's the premise behind adoption. ''Once you have legalized adoption, that's the end of the picture in terms of genetics,'' says Leonard Glantz, professor of health law at the Boston University School of Public Health. ''It's a very broad statement of social policy by legislature that genetics and parenthood are different issues.''

The decline in marriage and the rise of divorce have transformed the family crucible into a melting pot of half-siblings, stepsiblings, parents and stepparents. Still, even in the most mix-and-match household, there have been three essential categories of parent: biological, adoptive and step. But reproductive technology is upending those rules, creating real-life versions of the old novelty song ''I'm My Own Grandpa.'' How do we legally categorize a woman who gives birth to her own sibling? Or mothers who are akin to fathers, providing gametes but not gestating their offspring? What happens in divorce when a man denies paternity of a child his wife conceived, with his consent, using donor sperm?

In one mind-bending California case (most of the significant cases have emerged from that state), a couple used a donor egg and donor sperm to create an embryo that was then gestated by a surrogate. One month before the baby was born, the couple split up, and the husband refused responsibility for the child. A lower court found that the girl -- whose creation involved five separate adults -- had no parents whatsoever. (The decision was later overturned, and the divorcing couple were declared her mother and father. The mother got custody, and the father was ordered to pay child support.)

As cases involving third-party reproductive technology have grown more common, courts have come to rely on the intent of the parties as a tiebreaker. In another landmark California case, a couple used the wife's eggs and the husband's sperm to create an embryo that was gestated by a surrogate who signed away her parental rights. The surrogate later sued to be named the mother of the child. Each woman claimed to be the baby's biological mother, and strictly speaking each was, but the court found that the woman who intended to create a child -- in this case the one who provided the egg -- was the true parent under the law.

The trouble is that, as with K. and E., by the time a couple gets to court, acrimony and regret can obscure intent. In that way, K. and E.'s case is like those of hundreds of gay couples who did not or could not pursue second-parent adoption. Typically, however, only one partner is the biological (or adoptive) parent; the other relies on the evolving notion of ''psychological parenthood.'' Some states, like New Jersey, recognize a second mom or dad who wiped runny noses and helped with homework -- who had a clear parental role regardless of the actual legal relationships. In those places, K. might have had an easy case. Other states, like New York, side with birth mothers regardless of what a gay couple's intent may have been.

Unfortunately for K., she lives in California, which in a 1991 court decision held that acting as a child's parent -- even from birth -- doesn't make you one. In that case, a lesbian couple had brought up two children together, though only one woman was the biological mother. When they broke up, each took a child. That informal arrangement fell apart three years later when the nonbiological mother asked that they share custody of both. The biological mother objected, and they landed in court. Although they had initially intended to bring up the children together and the child who had lived with the nonbiological mother wished to remain with her, the nonbiological mother was barred from seeing either child again. In a final, freakish twist, the biological mother later died in a car crash, and the nonbiological mother was named the children's guardian.
Some courts consider psychological parenthood a fuzzy, potentially dangerous concept. What would stop a stepparent, or even multiple stepparents, from suing for custody? Should anyone who is deeply involved in the day-to-day workings of a child's life be able to lay legal claim? Nancy Polikoff, a professor of law at American University and an expert on laws relating to gay parenting, argues that that won't happen. ''The courts that have ruled that way have tried to be very careful about how they fashion a test, so that, for instance, a grandmother wouldn't be able to claim parental rights,'' she says. ''You have to show that you have a parental relationship to the child and that the person with the legal rights intended for you to be a real parent.''

What's more, Polikoff adds, that relationship is usually obvious. ''The children are fully incorporated into the extended family,'' she says. ''They look to the entire world, and most especially to themselves, like they have two parents.'' ...

During the pregnancy, E. seemed troubled by K.'s role in the conception. ''These children really aren't mine,'' she would tell K., who says that that's why she agreed to keep her role in the girls' conception secret, at least until they were born and the couple saw a therapist. Still, K. wasn't concerned. She says that she had no reason to be: when they broke the news to K.'s father, E. told him, ''You'll be lucky -- you're going to be a grandfather twice.'' ...

Increasingly, K. lived in fear; her core connection to her children was in jeopardy. She pressed -- even begged -- her partner to come clean about the childrens' conception and to pursue a second-parent adoption if necessary. E. resisted. Their relationship became defined by, and ultimately reduced to, the struggle to stake out their motherhood. When the girls were 5, K. says, E. disappeared with them for three days. K. was so upset when they came home that she defied her partner: that night at bath time she revealed to the girls how they were related to her. ...

Nancy Polikoff, the law professor, agrees. If K. had been a man ''donating'' sperm to his live-in lover, she says, and they had brought up the resulting child together for six years, ''the court would have had no trouble saying that child has one mother and one father, regardless of what the couple initially decided. Courts are very focused on that model and go to great lengths to enforce it.''

If K. could have discreetly stepped into the bathroom and come back with a dozen turkey-baster-ready eggs in a jar, any prenatal agreement between her and E. would also have been invalid. While men who donate through medical facilities in most states are not considered fathers (a practice that was established to protect infertile married men), a guy who offers his sperm to a friend can later claim paternity regardless of what he may have signed. In one Minnesota case, a lesbian couple drew up an exquisitely detailed contract for a sperm-donating acquaintance, which relinquished his paternity but allowed visitation. Several years later, the man changed his mind and sued to become the child's legal father; the court allowed it, declaring the nonbiological mother's adoption of the child fraudulent in the process. Men, it turns out, cannot sign away their paternal rights and obligations based solely on the delivery method of their semen. ...

In May, an appeals court upheld the lower court's ruling. Under California law, the judges wrote, the natural mother is the woman who intended to procreate. They ruled that the form K. signed was binding and agreed with E.'s view that she was the intended parent. Had K. adopted the children, it would have been different. They also ruled that K.'s psychological relationship to the girls was immaterial: to recognize it would threaten the rights of any parent who encouraged a bond between her child and a new lover. Like the lower court, the judges presented their findings with some regret, acknowledging that their decision on who was the parent could not be based on the best interests of the children. In fact, they wrote, ''the interests of the children will be 'disserved' by the loss of a loving mother figure.''

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