Same Sex Couple In Custody Battle Over Twins

March 24, 2004 -- Against the backdrop of the nation's cultural wars over same-sex marriages, one former same-sex couple is caught up in a fierce legal tug-of-war over rights to their twin girls.

Kim, who does not want her last name used, says she and her partner split up five years after they had twin girls together.

A fertility clinic provided Kim and her former partner with sperm and Kim provided the eggs. Her former partner provided the womb, and that's why a judge ruled she is entitled to sole custody.

Meanwhile, Kim, the twins' genetic mother, says she and her former partner never intended to raise the girls separately.

"We both wanted to have children very much," Kim said on ABCNEWS' Good Morning America. "And we really, truly believed that we found the one partner in each other," she said.

Unclear Territory

Kim said that she and her former partner exchanged rings and raised the girls together for five years after they were born. She says they considered themselves married, although they could not legally be married in the state of California.

When they split, the designated birth mother moved to Massachusetts with the girls. Kim went to court to obtain shared custody, but her attempt was unsuccessful

Judge Randolph E. Heubach of Marin County Superior Court said he deeply regretted that the evidence presented to him did not allow him to rule any other way.

In his ruling, the judge wrote, "The court recognizes the harsh consequences this decision will visit upon the innocent children born of the parties' unusual arrangement."

Kim's attorney, Jill Hersh, says the judge's decision was largely based on a medical form that was signed by Kim just before her eggs were harvested.

Meanwhile, Kim said she didn't know that she was waiving her rights to adopt the babies by signing the form.

"This was a form that… didn't even pertain to us, because embedded in this form it spoke to never attempting to discover the recipient [of the eggs]," Kim said.

Unspoken Agreements

Hersh says the form was meant for couples who receive eggs from an anonymous donor and that it didn't apply to Kim and her former partner's procedure, since they were going through the process together, without a unknown donor.

Kim, whose uterus could not support a pregnancy, says she never attempted to legally adopt the twins before she and her former partner split because she never assumed it would become an issue, considering the girls came from her own eggs.

Kim's former partner has said, through her attorney, that she and Kim decided together that the twins would be raised by her. The woman's attorney has said that Kim served the same functions as a step-parent in their home.

Hersh, a family law attorney who argued the case before a state appellate court in San Francisco last month, says that Kim would have never agreed with an arrangement that would have left her former partner with sole custody.

A decision is the case is expected in the next week.