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Nevada Supreme Court Answers Questions of First Impression in Lesbian Custody Dispute Involving Donor Insemination and Co-Parenting Agreement

Posted on: October 8th, 2013 by Art Leonard No Comments

The Nevada Supreme Court ruled unanimously on October 3 that a child can have two mothers and that a co-parenting agreement made by two women before their child was conceived through anonymous donor insemination with one woman providing the egg and the other being the gestational mother, can be enforceable as an agreement by parents who are presumed to have the best interest of their child at heart.   Reversing a trial court decision that treated one of the women as a mere surrogate mother with no legal rights, the court returned the case to the trial court for a new determination of parental rights.

Justice Nancy M. Saitta wrote the opinion in St. Mary v. Damon, settling several questions of first impression under Nevada law, and giving heavy weight to California decisions that interpret similarly-worded statutes.

Sha’Kayla St. Mary and Veronica Lynn Damon moved in together about a year after their relationship began, and decided to have a child together.  According to St. Mary, they decided to have Damon contribute the egg for in vitro fertilization with sperm through an anonymous donor, the resulting ovum to be implanted in St. Mary, in order that both of the women would have parental status, St. Mary as the birth mother and Damon as the genetic mother.   After the procedure was performed they both signed a co-parenting agreement, under which they agreed that if their relationship ended, they would “each work to ensure that the other maintained a close relationship with the child, sharing the duties of raising the child, and make a ‘good faith effort to jointly make all major decisions” affecting the child.

St. Mary gave birth to the child in June 2008, and was listed on the birth certificate as the child’s only parent, but the child was given a hyphenated last name to reflect both mothers.  About one year after the child’s birth, the women ended their relationship, St. Mary moved out of the home, and they disagreed about how to share their time with the child.  However, St. Mary cooperated with Damon by signing an affidavit declaring that Damon was the biological mother of the child, which Damon used to get a court order to have the child’s birth certificate amended to list her as a mother.  The court declared that Damon was “the biological and legal mother” of the child, and ordered that the birth certificate be amended to add Damon’s name as a mother.

Then St. Mary filed the lawsuit seeking to establish custody, visitation, and child support, but Damon responded that as the biological mother she was entitled to sole custody, attaching the 2009 court order.

The trial judge treated St. Mary as a mere surrogate.  Damon had filed a motion to limit the court’s evidentiary hearing to the issue of whether St. Mary would have visitation, arguing that Damon’s sole parental status had been established by the court’s order.  The trial judge agreed with Damon, excluding St. Mary’s custody claim from the hearing, and focused solely on the visitation issue.  At the conclusion of the hearing, the trial court found that St. Mary should have “third party visitation,” finding that she “has no biological or legal rights whatsoever under Nevada law.”  Further, the trial judge found the co-parenting agreement unenforceable, concluding that it fell outside the scope of enforceable surrogacy agreements, which under Nevada law could be made only by a married couple with a surrogate.

St. Mary appealed from the denial of her parental rights, and the Nevada Supreme Court unanimously reversed, finding that the trial judge was mistaken about Nevada law.

Following the lead of the California courts, the Nevada Supreme Court held that a child can have two legal mothers, and that a co-parenting agreement such as the one made in this case could be enforceable.  Most significantly, the court found that under Nevada statutes St. Mary could be deemed a parent to the child because she was its birth mother under circumstances where, as she claimed, the women had agreed that both were intended to be parents of the child.  The trial judge had misconstrued the effect of Damon’s prior legal action to establish her parental rights, said the court.  Although the prior court order had established her status as a legal mother of the child, it had not ordered that St. Mary’s name be removed from the amended birth certificate.

That is, finding that the child had two legal mothers was not inconsistent with the prior decision.

The facts are contested however.  Damon claims that St. Mary was intended to be a surrogate and not an intended parent, and that the “co-parenting agreement” was actually an invalid surrogacy contract that the women had signed because the clinic that performed the procedure required a written agreement.  When the case goes back to the trial court, there will have to be an evidentiary hearing to determine whether St. Mary or Damon is more credible, but Justice Saitta’s narration of the facts implicitly suggests that St. Mary’s account of what happened makes more sense.

Nevada is now a domestic partnership state, but that development post-dates the relevant facts in this case, as the child was conceived in 2007 and born in 2008, and Damon’s initial action seeking a declaration of her status took place in 2009, which is also when St. Mary filed her complaint in this case.  Had the women been registered Nevada domestic partners at the relevant time, the law would have recognized both as parents of the child.  But many lesbian couples have children without undertaking to register as partners or marry, so the court’s ruling remains important, and continues a trend in applying the up-to-date version of the Uniform Parentage Act as construed in California and followed in New Mexico to encompass the legal situation faced by non-traditional families.