Ruling on a custody contest between a birth mother and her former same-sex spouse on April 5, the Mississippi Supreme Court avoided mentioning the parental presumption that most states automatically apply for the spouse of a woman who gives birth to a child, relying instead on a doctrine called “equitable estoppel” to prevent the birth mother from contesting her former spouse’s parental status.
Although none of the five written opinions signed by different combinations of judges on the nine member court represent the views of a majority, adding them up produces a holding that the existence of an anonymous sperm donor is irrelevant to the determination of parental rights for the birth mother’s same-sex spouse. The court reversed a ruling by Judge John S. Grant, III, of the Rankin County Chancery Court, that the failure to obtain a waiver of parental rights from an anonymous sperm donor prevents identifying the birth mother’s spouse as a legal parent of the child.
The various complications in this case arose because the relevant facts played out before marriage equality came to Mississippi as a result of the June 2015 Obergefell decision by the U.S. Supreme Court, and because the retrograde Mississippi legislature has neglected to adopt any statutes concerning who would be considered a parent when a woman or a couple use sperm from an anonymous donor obtained through a sperm bank to conceive a child, leaving the courts to sort this out without any legislative guidance.
The story begins in 1999 when Christina Strickland and Kimberly Jayroe began their relationship. After several years together, they decided to adopt a child. The adoption of E.J. was finalized in 2007. Because Mississippi did not allow joint adoptions by unmarried couples, only Kimberly was the legal adoptive parent of E.J.. In 2009, Christina and Kimberly went to Massachusetts to marry, and Kimberly took Christina’s last name. The Stricklands then returned to their home in Mississippi, where their marriage was not legally recognized.
In 2010, the Stricklands decided to have a child using “assisted reproductive technology” – A.R.T. They obtained anonymously donated sperm from a Maryland sperm bank. Kimberly, whom they jointly decided would be the gestational mother, signed the sperm bank’s form providing that she would “never seek to identify the donor” and that the donor would not be advised of Kimberly’s identity. In Maryland, Kimberly was then recognized as a married woman and Christina was identified as her spouse in the clinic paperwork. Both women signed the form acknowledging that they were participating in this process as a married couple and would both be parents of the resulting child.
According to the plurality opinion by Justice David Ishee, “Christina testified that she was involved in and supportive through every step of the conception and pregnancy.” She also testified that their plan was to go to Massachusetts for the delivery of the baby, so that their marriage would be recognized and both recorded as parents on the birth certificate. But for medical reasons that did not occur. Six week before her due date, Kimberly gave birth to the child, Z.S., in an emergency cesarean section surgical procedure in a Mississippi hospital. Since Mississippi did not recognize the marriage, the birth certificate shows Kimberly as the only parent.
Over the next two years, the women functioned as a family unit, raising both E.J. and Z.S. as co-parents. Christina stayed home for the first year of Z.S.’s life, while Kimberly worked full time. Christina testified that both children call her “mom.” The women separated in January 2013. Christina continued to visit both children and paid child support, medical and daycare expenses for Z.S.
Now things took a strange twist: On August 13, 2015, while still married to Christina (and at a time, due to the Obergefell decision, when Mississippi would be legally obligated to recognize the marriage is the issue came up in any legal context), Kimberly married a second spouse, whose name and gender are not identified in any of the judge’s opinions, although from the caption of the case it sounds like her new spouse’s surname is Day, since Kimberly is identified in the title of the case as Kimberly Jayroe Strickland Day.
This prompted Christina to file a divorce petition in Harrison County Chancery Court on August 31. On November 16, Kimberly filed a motion for a declaratory judgment that her second marriage was valid and her first marriage “dissolved” in Rankin County Circuit Court. Christina answered that motion and counterclaimed for divorce and legal and physical custody of both children, who were then living with Kimberly. She also sought to be named as Z.S.’s legal parent. The two cases were consolidated in the Rankin County court. On May 17, 2016, Judge Grant issued an order declaring that Christina and Kimberly’s 2009 Massachusetts marriage was valid and recognized in Mississippi, and therefore that Kimberly’s second marriage was void.
This led the women to negotiate a “consent and stipulation,” in which they agreed that Z.S. was born during their marriage, that they would jointly pay all school expenses for Z.S., and that Kimberly would retain physical and legal custody of E.J., the adoptive child. They agreed to let the chancery court decide custody, visitation, and child support issues for Z.S., child support and visitation issues for E.J., and the issue of Christina’s parental status toward Z.S.
Judge Grant’s final judgment of divorce, entered on October 16, 2016, ordered Christina to pay child support for both children, and held that Z.S. was born during a valid marriage. But, he ruled, Z.S. was “a child born during the marriage, but not of the marriage,” so both parties were not considered to be Z.S.’s parents. The court considered the anonymous sperm donor to be “an absent father” whose legal parentage “precluded a determination that Christina was Z.S.’s legal parent.” However, Judge Grant held that she was entitled to visitation with Z.S. under a doctrine called “in loco parentis,” which recognizes that somebody who has acted as a parent and bonded with a child as such could be entitled to visitation even though she has no legal relation to the child.
Christina appealed three days later. At the heart of her argument was that because Z.S. was born while Christina was married to Kimberly, Christina should be deemed the child’s legal parent, and that the anonymous sperm donor, who had no relationship to the child, could not possibly be considered its legal parent.
The Mississippi Supreme Court was in agreement with Christina’s argument that the sperm donor is really out of the picture and should not be considered a parent. Justice Ishee’s opinion, for himself and Justices Kitchens, King and Beam, declared that Judge Grant’s finding that the sperm donor was the child’s “natural father” was erroneous as a matter of law. “At the outset,” he wrote, “we are cognizant of the fact that we never before have determined what parental rights, if any, anonymous sperm donors possess in the children conceived through the use of their sperm. As such, this is an issue of first impression.”
That is a startling statement for a state Supreme Court to make in 2018, when donor insemination has been around for half a century and most states have adopted legislation on the subject. But, wrote Justice Ishee, there is only one provision of Mississippi law relating to donor insemination, a statute providing that a father cannot seek to disestablish paternity when a child was conceived by “artificial insemination” during the marriage to the child’s mother. That’s it. However, wrote Ishee, “Reading this provision, in light of the context before us, the logical conclusion – while not explicit – is that the Legislature never intended for an anonymous sperm donor to have parental rights in a child conceived from his sperm – irrespective of the sex of the married couple that utilized his sperm to have that child.”
“How,” asked Ishee, “on the one hand, can the law contemplate that a donor is a legal parent who must have his rights terminated, while at the same time prohibiting the non-biological father of a child conceived through AI from disestablishing paternity? These two policies cannot co-exist.”
Ishee rejected Kimberly’s argument that “all of the non-biological parents of children conceived through AI should be required to terminate the sperm donor’s parental rights and then establish parentage through the adoptive process.” Ishee’s plurality (4 justices) rejected this process as “intrusive, time-consuming, and expensive,” including a ridiculous waste of time for a judge to have to determine that an anonymous sperm donor, who never intended to be the parent of the child, had “abandoned” the child, thus making the child available for adoption by its mother’s spouse.
When a father is “absent” at the time a child is born, the usual process is to try to locate the missing father and inform him of his obligations, but in the case of an anonymous donor, neither the mother nor the court has the necessary information. In a case like this one, publishing such a notice in a newspaper – the standard way for courts to give notice to missing parties – makes no sense.
On appeal, Christina raised alternative arguments in support of her claims to be Z.S.’s parent. First, she asked the court to determine a question not addressed by Mississippi statutes: “Whether children born to married parents who give birth to a child via A.R.T. with sperm from an anonymous donor are entitled to the marital presumption that both spouses are their legal parents.” Alternatively, she asked “Whether the Supreme Court’s decision in Obergefell v. Hodges requires Mississippi to apply laws relating to the marital presumption of parentage in a gender-neutral manner so as to apply equally to married same-sex couples.” As another alternative, she asked whether the doctrine of “equitable estoppel” could be used to preclude a birth mother from trying to “disestablish her spouse’s parentage of the couple’s marital child based solely on the absence of a genetic relationship, when the child was born as a result of anonymous donor insemination, to which both spouses consented.” Christina argued that Judge Grant’s order violated constitutionally protected liberty and equality interests by failing to recognize Christina’s parental relationship with Z.S.
Justice Ishee’s opinion ignored all of these arguments except “equitable estoppel,” a doctrine which he explained that Mississippi courts have defined “as the principle by which a party is precluded from denying any material fact, induced by his words or conduct upon which a person relied, whereby the person changed his position in such a way that injury would be suffered if such denial or contrary assertion was allowed.” Ishee concluded that the doctrine fits this case, and rejected Kimberly’s argument that the decision to have a child through donor insemination was solely hers and the fact that she was married to Christina at the time was irrelevant. Ishee found that “the evidence in the record belies this assertion,” and cited chapter and verse, right down to the birth announcements the women sent out, which identified the women as “two chicks” who had “hatched” the child.
Since Kimberly represented to Christina all along that Christina would be a parent of Z.S., the doctrine of equitable estoppel blocks her from arguing to the contrary in the context of this divorce proceeding. Judge Grant’s award of “in loco parentis” status to Christina was insufficient, in Ishee’s view, to protect her legitimate interests. For example, suppose Kimberly married somebody else and petitioned for her new spouse to adopt Z.S. Christina’s “in loco parentis” status would not entitle her to prevent such an adoption. But if the court recognizes her as a parent, she could.
Thus, without ever mentioning the parental presumption, the plurality opinion, purporting to be speaking for the court as a whole because of the concurring opinions, reversed the chancery court’s ruling that Christina acted “in loco parentis” but “was not an equal parent with parental rights to Z.S.” They sent the case back to Rankin County Chancery Court to determine custody using the multifactorial test that is generally used in a custody contest between legal parents to determine what would be in the best interest of the child, with a “guardian ad litem” appointed to represent Z.S. in the proceedings.
Chief Justice William Waller, Jr., joined “in part” by Justices Randolph, Coleman, Maxwell and Chamberlin, “concurred in part and in the result.” “The narrow issue before the Court,” wrote Waller, “is whether two people legally married who jointly engage in a process of assisted reproduction technology resulting in the natural birth by the gestational mother are both considered parents for purposes of divorce and determination of parental rights of the minor child. I conclude that they are and that the decision of the chancellor should be reversed and remanded.” After briefly referring to equitable estoppel, he wrote, “While this Court can use common-law principles to render a decision here, the Legislature should speak directly to the recognition of the legal status of children born during a marriage as a result of assisted reproductive technology.”
Justice Josiah Coleman, concurring in part and dissenting in part, pointed out that the doctrine of “equitable estoppel” had not been argued to Judge Grant, so it should not be a basis for the court’s decision. Thus, he was only joining Judge Waller’s opinion to the extent that Waller agreed that the chancellor erred by according any parental status to the sperm donor. He would remand the case to the trial court, having reversed that part of the holding, “to allow the parties to present whatever evidence and arguments they wished that accord with the Court’s holding.” His opinion was joined “in part” by Justices Randolph and Maxwell.
Justice James Maxwell, also concurring in part and dissenting in part, insisted that “what parental rights a sperm donor may or may not have is a policy issue for the Legislature, not the Court,” and since there was no statute on point, “we should be extremely hesitant to draw conclusions about the disestablishment-of-paternity statute, when that statute is wholly inapplicable here. Indeed,” he argued, “it is dangerous for the plurality to weigh in so heavily with what it views to be the best policy, since we all agree the chancellor erroneously inserted this issue into the case.” His opinion was joined “in part” by Justices Randolph and Coleman.
Finally, Justice Michael Randolph dissented, joined in part by Justices Coleman, Maxwell, and Chamberlin. Randolph said the court should never have addressed equitable estoppel, because that argument was presented for the first time on appeal. Next, although he agreed that the chancellor erred in declaring an anonymous sperm donor to be the child’s “natural father,” he thought that the “plurality’s blanket assertion that in any case, no anonymous sperm donor will be accorded the burdens and benefits of natural fathers” went too far. He though there was a constitutional issue here, where no attempt had been made to identify and contact the sperm donor. He also pointed out that the “disestablishment” statute cited by Justice Ishee and then used to support the plurality’s ruling “never was quoted or argued by either party at the trial level,” so also should not have been relied upon in any way by the Supreme Court. He also found no basis in the record for setting aside the chancellor’s determination that it was “not in the best interest of either child for Christina to have custody.” He pointed out that the chancellor had neglected to address all of the factors specified by Mississippi courts on the record, so the correct approach would be to remand the case to the chancellor “to examine the record and the chancellor’s notes and issue a final decree consistent with this dissent.
This appears to be a victory for Christina, to the extent that enough members of the court agreed with the equitable estoppel approach to make that part of the holding of the court, tossing the case back to the trial court to decide anew whether it is in the best interest of Z.S. for Christina to have joint or primary custody of him as a parent. (Christina is not seeking custody of E.J., just visitation rights.) But the fractured ruling falls short of the appropriate analysis that would be more beneficial for married LGBT couples in Mississippi: a straightforward acknowledgement that when a married lesbian couple has a child through donor insemination, both of the women will be presumed to be the legal parents of that child, without any need to make a factual showing required for the application of equitable estoppel should any dispute later arise about custody or visitation. One wonders whether fear of political retribution may have motivate all nine justices to avoid mentioning the parental presumption or invoking Obergefell in support of its application in their various opinions.
Christina is represented by Mississippi attorney Dianne Herman Ellis and Lambda Legal staff attorney Elizabeth Lynn Littrell. Kimberly is represented by Prentiss M. Grant.Tags: Christina Strickland, donor insemination, equitable estoppel, Judge John S. Grant III, Justice David Ishee, Kimberly Jayroe Strickland Day, Lambda Legal, lesbian custody dispute, married lesbian custody dispute, Mississippi, Mississippi Supreme Court, Obergefell v. Hodges, parental issues in donor insemination, parental presumption, parental rights of sperm donor, Rankin County Chancery Court, same-sex marriage, sperm donor, Strickland v. Day